Refugees: General Framework Agreement for Peace in Bosnia and Herzegovina
ANNEX 7: AGREEMENT ON REFUGEES AND DISPLACED PERSONS
The Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina, and the Republika Srpska (the "Parties") have agreed as follows:
Chapter One: Protection: Article I: Rights of Refugees and Displaced Persons
1. All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived in the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them. The early return of refugees and displaced persons is an important objective of the settlement of the conflict in Bosnia and Herzegovina. The Parties confirm that they will accept the return of such persons who have left their territory, including those who have been accorded temporary protection by third countries.
2. The Parties shall ensure that refugees and displaced persons are permitted to return in safety, without risk of harassment, intimidation, persecution, or discrimination, particularly on account of their ethnic origin, religious belief, or political opinion.
3. The Parties shall take all necessary steps to prevent activities within their territories which would hinder or impede the safe and voluntary return of refugees and displaced persons. To demonstrate their commitment to securing full respect for the human rights and fundamental freedoms of all persons within their jurisdiction and creating without delay conditions suitable for return of refugees and displaced persons, the Parties shall take immediately the following confidence building measures:
a. the repeal of domestic legislation and administrative practices with discriminatory intent or effect;
b. the prevention and prompt suppression of any written or verbal incitement, through media or otherwise, of ethnic or religious hostility or hatred;
c. the dissemination, through the media, of warnings against, and the prompt suppression of, acts of retribution by military, paramilitary, and police services, and by other public officials or private individuals;
d. the protection of ethnic and/or minority populations wherever they are found and the provision of immediate access to these populations by international humanitarian organizations and monitors;
e. the prosecution, dismissal or transfer, as appropriate, of persons in military, paramilitary, and police forces, and other public servants, responsible for serious violations of the basic rights of persons belonging to ethnic or minority groups.
4. Choice of destination shall be up to the individual or family, and the principle of the unity of the family shall be preserved. The Parties shall not interfere with the returnees' choice of destination, nor shall they compel them to remain in or move to situations of serious danger or insecurity, or to areas lacking in the basic infrastructure necessary to resume a normal life. The Parties shall facilitate the flow of information necessary for refugees and displaced persons to make informed judgments about local conditions for return.
5. The Parties call upon the United Nations High Commissioner for Refugees ("UNHCR") to develop in close consultation with asylum countries and the Parties a repatriation plan that will allow for an early, peaceful, orderly and phased return of refugees and displaced persons, which may include priorities for certain areas and certain categories of returnees. The Parties agree to implement such a plan and to conform their international agreements and internal laws to it. They accordingly call upon States that have accepted refugees to promote the early return of refugees consistent with international law.
Article II: Creation of Suitable Conditions for Return
1. The Parties undertake to create in their territories the political, economic, and social conditions conducive to the voluntary return and harmonious reintegration of refugees and displaced persons, without preference for any particular group. The Parties shall provide all possible assistance to refugees and displaced persons and work to facilitate their voluntary return in a peaceful, orderly and phased manner, in accordance with the UNHCR repatriation plan.
2. The Parties shall not discriminate against returning refugees and displaced persons with respect to conscription into military service, and shall give positive consideration to requests for exemption from military or other obligatory service based on individual circumstances, so as to enable returnees to rebuild their lives.
Article III: Cooperation with International Organizations and International Monitoring
1. The Parties note with satisfaction the leading humanitarian role of UNHCR, which has been entrusted by the Secretary-General of the United Nations with the role of coordinating among all agencies assisting with the repatriation and relief of refugees and displaced persons.
2. The Parties shall give full and unrestricted access by UNHCR, the International Committee of the Red Cross ("ICRC"), the United Nations Development Programme ("UNDP"), and other relevant international, domestic and nongovernmental organizations to all refugees and displaced persons, with a view to facilitating the work of those organizations in tracing persons, the provision of medical assistance, food distribution, reintegration assistance, the provision of temporary and permanent housing, and other activities vital to the discharge of their mandates and operational responsibilities without administrative impediments. These activities shall include traditional protection functions and the monitoring of basic human rights and humanitarian conditions, as well as the implementation of the provisions of this Chapter.
3. The Parties shall provide for the security of all personnel of such organizations.
Article IV: Repatriation Assistance
The Parties shall facilitate the provision of adequately monitored, short-term repatriation assistance on a nondiscriminatory basis to all returning refugees and displaced persons who are in need, in accordance with a plan developed by UNHCR and other relevant organizations, to enable the families and individuals returning to reestablish their lives and livelihoods in local communities.
Article V: Persons Unaccounted For
The Parties shall provide information through the tracing mechanisms of the ICRC on all persons unaccounted for. The Parties shall also cooperate fully with the ICRC in its efforts to determine the identities, whereabouts and fate of the unaccounted for.
Article VI: Amnesty
Any returning refugee or displaced person charged with a crime, other than a serious violation of international humanitarian law as defined in the Statute of the International Tribunal for the Former Yugoslavia since January 1, 1991 or a common crime unrelated to the conflict, shall upon return enjoy an amnesty. In no case shall charges for crimes be imposed for political or other inappropriate reasons or to circumvent the application of the amnesty.
Chapter Two: Commission for Displaced Persons and Refugees
Article VII: Establishment of the Commission
The Parties hereby establish an independent Commission for Displaced Persons and Refugees (the "Commission"). The Commission shall have its headquarters in Sarajevo and may have offices at other locations as it deems appropriate.
Article VIII: Cooperation
The Parties shall cooperate with the work of the Commission, and shall respect and implement its decisions expeditiously and in good faith, in cooperation with relevant international and nongovernmental organizations having responsibility for the return and reintegration of refugees and displaced persons.
Article IX: Composition
1. The Commission shall be composed of nine members. Within 90 days after this Agreement enters into force, the Federation of Bosnia and Herzegovina shall appoint four members, two for a term of three years and the others for a term of four years, and the Republika Srpska shall appoint two members, one for a term of three years and the other for a term of four years. The President of the European Court of Human Rights shall appoint the remaining members, each for a term of five years, and shall designate one such member as the Chairman. The members of the Commission may be reappointed.
2. Members of the Commission must be of recognized high moral standing.
3. The Commission may sit in panels, as provided in its rules and regulations. References in this Annex to the Commission shall include, as appropriate, such panels, except that the power to promulgate rules and regulations is vested only in the Commission as a whole.
4. Members appointed after the transfer described in Article XVI below shall be appointed by the Presidency of Bosnia and Herzegovina.
Article X: Facilities, Staff and Expenses
1. The Commission shall have appropriate facilities and a professionally competent staff, experienced in administrative, financial, banking and legal matters, to assist it in carrying out its functions. The staff shall be headed by an Executive Officer, who shall be appointed by the Commission.
2. The salaries and expenses of the Commission and its staff shall be determined jointly by the Parties and shall be borne equally by the Parties.
3. Members of the Commission shall not be held criminally or civilly liable for any acts carried out within the scope of their duties. Members of the Commission, and their families, who are not citizens of Bosnia and Herzegovina shall be accorded the same privileges and immunities as are enjoyed by diplomatic agents and their families under the Vienna Convention on Diplomatic Relations.
4. The Commission may receive assistance from international and nongovernmental organizations, in their areas of special expertise falling within the mandate of the Commission, on terms to be agreed.
5. The Commission shall cooperate with other entities established by the General Framework Agreement, agreed by the Parties, or authorized by the United Nations Security Council.
Article XI: Mandate
The Commission shall receive and decide any claims for real property in Bosnia and Herzegovina, where the property has not voluntarily been sold or otherwise transferred since April 1, 1992, and where the claimant does not now enjoy possession of that property. Claims may be for return of the property or for just compensation in lieu of return.
Article XII: Proceedings before the Commission
1. Upon receipt of a claim, the Commission shall determine the lawful owner of the property with respect to which the claim is made and the value of that property. The Commission, through its staff or a duly designated international or nongovernmental organization, shall be entitled to have access to any and all property records in Bosnia and Herzegovina, and to any and all real property located in Bosnia and Herzegovina for purposes of inspection, evaluation and assessment related to consideration of a claim.
2. Any person requesting the return of property who is found by the Commission to be the lawful owner of that property shall be awarded its return. Any person requesting compensation in lieu of return who is found by the Commission to be the lawful owner of that property shall be awarded just compensation as determined by the Commission. The Commission shall make decisions by a majority of its members.
3. In determining the lawful owner of any property, the Commission shall not recognize as valid any illegal property transaction, including any transfer that was made under duress, in exchange for exit permission or documents, or that was otherwise in connection with ethnic cleansing. Any person who is awarded return of property may accept a satisfactory lease arrangement rather than retake possession.
4. The Commission shall establish fixed rates that may be applied to determine the value of all real property in Bosnia and Herzegovina that is the subject of a claim before the Commission. The rates shall be based on an assessment or survey of properties in the territory of Bosnia and Herzegovina undertaken prior to April 1, 1992, if available, or may be based on other reasonable criteria as determined by the Commission.
5. The Commission shall have the power to effect any transactions necessary to transfer or assign title, mortgage, lease, or otherwise dispose of property with respect to which a claim is made, or which is determined to be abandoned. In particular, the Commission may lawfully sell, mortgage, or lease real property to any resident or citizen of Bosnia and Herzegovina, or to either Party, where the lawful owner has sought and received compensation in lieu of return, or where the property is determined to be abandoned in accordance with local law. The Commission may also lease property pending consideration and final determination of ownership.
6. In cases in which the claimant is awarded compensation in lieu of return of the property, the Commission may award a monetary grant or a compensation bond for the future purchase of real property. The Parties welcome the willingness of the international community assisting in the construction and financing of housing in Bosnia and Herzegovina to accept compensation bonds awarded by the Commission as payment, and to award persons holding such compensation bonds priority in obtaining that housing.
7. Commission decisions shall be final, and any title, deed, mortgage, or other legal instrument created or awarded by the Commission shall be recognized as lawful throughout Bosnia and Herzegovina.
8. Failure of any Party or individual to cooperate with the Commission shall not prevent the Commission from making its decision.
Article XIII: Use of Vacant Property
The Parties, after notification to the Commission and in coordination with UNHCR and other international and nongovernmental organizations contributing to relief and reconstruction, may temporarily house refugees and displaced persons in vacant property, subject to final determination of ownership by the Commission and to such temporary lease provisions as it may require.
Article XIV: Refugees and Displaced Persons Property Fund
1. A Refugees and Displaced Persons Property Fund (the "Fund") shall be established in the Central Bank of Bosnia and Herzegovina to be administered by the Commission. The Fund shall be replenished through the purchase, sale, lease and mortgage of real property which is the subject of claims before the Commission. It may also be replenished by direct payments from the Parties, or from contributions by States or international or nongovernmental organizations.
2. Compensation bonds issued pursuant to Article XII(6) shall create future liabilities on the Fund under terms and conditions to be defined by the Commission.
Article XV: Rules and Regulations
The Commission shall promulgate such rules and regulations, consistent with this Agreement, as may be necessary to carry out its functions. In developing these rules and regulations, the Commission shall consider domestic laws on property rights.
Article XVI: Transfer
Five years after this Agreement takes effect, responsibility for the financing and operation of the Commission shall transfer from the Parties to the Government of Bosnia and Herzegovina, unless the Parties otherwise agree. In the latter case, the Commission shall continue to operate as provided above.
Article XVII: Notice
The Parties shall give effective notice of the terms of this Agreement throughout Bosnia and Herzegovina, and in all countries known to have persons who were citizens or residents of Bosnia and Herzegovina.
Article XVIII: Entry into Force
This Agreement shall enter into force upon signature.
In his report on 13 December 1995 to the Security Council, the U.N. Secretary General stated that there were 1.2 million displaced persons inside Bosnia and Herzegovina and 900,000 outside the country. He stated that accurate planning was difficult because of the future security situation as well as uncertainties related to the wishes of the internally displaced persons (IDPs) and refugees. IDPs and refugees had the option to return to their homes or settle elsewhere.1 However, the institutional mechanisms to implement the provisions of the accord were not in place and international organizations, like the United Nations High Commissioner for Refugees (UNHCR) and other agencies, were working on the issue.
Refugees started to return voluntarily. According to a UNHCR report, 815 refugees had returned.2 It was not clear whether the Commission for Displaced Persons and Refugees was set up in 1995 as mandated by the peace accord.
- 1. “Report of the Secretary-General Pursuant to Security Council Resolution 1026 (1995),” U.N. Security Council (S/1995/1031), December 13, 1995.
- 2. “2002 UNHCR Statistical Yearbook - Bosnia and Herzegovina,” United Nations High Commissioner for Refugees (UNHCR), 2002, accessed May 2, 2011, http://www.unhcr.org/414ad5707.html.
The U.N. Secretary General informed the Security Council that the UNHCR had developed an operational plan to support the return of more than 2 million refugees and displaced persons. The UNHCR plan was presented to the Humanitarian Issues Working Group of the Peace Implementation Council on 16 January and strongly endorsed at a subsequent high-level working meeting in Oslo on 8 March 1996. The estimated figures of returnees in 1996 were 500,000 IDPs and 370,000 refugees. The report further suggested that more than 50,000 refugees and displaced persons returned home in spontaneous and organized movements assisted by the UNHCR, but that those who returned were mostly refused “on grounds of lack of security guarantees or clear instructions from the leadership concerned” (United Nations, 1996). According to the report, “an independent Commission for Real Property Claims of Displaced Persons and Refugees was established on 20 March 1996 with its main base in Sarajevo. Its function is to receive and decide any claims for real property in Bosnia and Herzegovina where the property has not voluntarily been sold or otherwise transferred since 1 April 1992, and where the claimant does not enjoy possession of the property. The Commission consists of four members appointed by the Federation, two members appointed by the Republika Srpska and three members appointed by the European Court of Justice. Given the close link between repatriation and property, UNHCR will be associated with the work of the Commission."3 It was said that the successful return of refugees and IDPs would depend on sustained security provided by the parties, massive physical and economic reconstruction, and mine clearing efforts in those areas where IDPs and refugees would return.
By the end of 1996, the U.N. Secretary General reported that “some 250,000 refugees and displaced persons have returned to their homes in Bosnia and Herzegovina” (U.N., 1996). Most of the returnees returned to their homes where their community was in majority. The report further suggested, “Of an estimated 84,000 houses requiring repair, work has been completed on 24,000 so far. Other key community infrastructure activities, such as the repair of 100 schools, 50 clinics and hospitals, 60 water systems and 50 power systems, have been undertaken. It is estimated that up to 100,000 people, mainly displaced persons, will benefit from these activities."4
The amnesty law was passed in both entities in 1996, but there was a fundamental flaw as it excluded persons who deserted or avoided military conscription. The Office of the High Representative (OHR) suggested that this “must be corrected.”5
- 3. “Report of the Secretary-General Pursuant to Resolution 1035 (1995),” U.N. Security Council (S/1996/210), March 29, 1996.
- 4. “Report of the Secretary-General Pursuant to Resolution 1035 (1995),” U.N. Security Council (S/1996/1017), December 9, 1996.
- 5. “4th Report of the High Representative for Implementation of the Bosnian Peace Agreement to the Secretary-General of the United Nations,” Office of the High Representative (OHR), 1996, accessed May 2, 2011, http://www.ohr.int/other-doc/hr-reports/default.asp?content_id=3667.
The Secretary General reported to the U.N. Security Council that some 90,000 refugees and IDPs returned to their homes in Bosnia and Herzegovina (BiH). Half of them were from asylum countries. The UN Mission in Bosnia and Herzegovina as well as UNHCR provided repatriation related assistance and supported the local authorities in both entities in their efforts to provide assistance to displaced persons in collective centers.6
- 6. “Report of the Secretary-General on the United Nations Mission in Bosnia and Herzegovina,” U.N. Security Council (S/1997/694), September 8, 1997.
From January to September 1998, some 90,000 refugees and IDPs returned to Bosnia and Herzegovina. Among those, 50,000 returned under the German Government’s return program. Of the total number of those who returned, 2,440 persons returned to the Republika Srpska. Some 9,340 returned to their pre-war homes. A total of 6,063 refugees and IDPs returned to minority areas. The UNHCR continued to promote minority returns with the declarations of new “Open Cities”. Minority returns was a particularly important issue, since they get to the heart of whether multi-ethnicity could be regenerated in Bosnia, or whether the country would remain de facto partitioned among its three constituent peoples. The UNHCR, together with the Office of the High Representative, provided assistance to those returned. Both entities also monitored the implementation of the new property legislation passed by the Federation in April 1998.7
According to a UNHCR yearbook report, some 129,073 refugees and 29,570 IDPs returned by the end of 1998.8 The Republika Srpska did not meet the deadline to adopt the property law consistent with the Peace Agreement. The deadline of 31 August was set at Luxembourg.9
On 24 December 1998, the Republika Srpska National Assembly passed a Law on Amnesty, which amended the previous Law on Amnesty's exclusion of deserters and draft dodgers from legal protection. The president refused to sign the law. The amnesty laws were readopted by the RS national assembly on 23 July, overriding the earlier veto by the president.10
- 7. “Report of the Secretary General on the United Nations Mission in Bosnia and Herzegovina,” U.N. Security Council (S/1998/862), September 16, 1998.
- 8. “2002 UNHCR Statistical Yearbook - Bosnia and Herzegovina.”
- 9. “11th Report of the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations,” OHR, 1998, accessed May 2, 2011, http://www.ohr.int/other-doc/hr-reports/default.asp?content_id=3674.
- 10. “15th Report by the High Representative for Implementation of the Peace Agreement to The Secretary-General of the United Nations,” OHR, 1999, accessed May 2, 2011, http://www.ohr.int/other-doc/hr-reports/default.asp?content_id=3679.
According to the U.N. Secretary General’s report, “in the first ten months of 1999, the UNHCR registered the return of 43,830 refugees and 32,695 internally displaced persons. Of these, 18,604 individuals were members of ethnic minorities returning to the Federation, while 9,522 individuals (sic) members of ethnic minorities were recorded returning to the Republika Srpska."11 Part of the reason was related to the political and administrative obstruction at the local level to implementing the property law. As a step forward, however, the RS assembly “passed amended legislation in December that will allow former residents to reclaim socially-owned 'abandoned' property.”12
- 11. “Report of the Secretary-General on the United Nations Mission in Bosnia and Herzegovina,” U.N. Security Council (S/1999/1260), December 17, 1999.
- 12. “12th Report of the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations,” OHR, 1999, accessed May 2, 2011, http://www.ohr.int/other-doc/hr-reports/default.asp?content_id=3675.
The repatriation of refugees and return of IDPs remained unsatisfactory. According to the UNHCR, some 18,715 refugees and 59,347 IDPs resettled in 2000.13
- 13. “2002 UNHCR Statistical Yearbook- Bosnia and Herzegovina.”
The Secretary General reported to the UN Security Council the results of the re-registration of IDPs. This exercise was carried out in support of the UNHCR through both entities. According to the report, 518,252 persons applied for the IDP status (231,732 applied in Republika Srpska, 263,375 in the Federation, and 23,145 in the Brcko District) at the end of 2000. Approximately 845,000 were registered as IDPs in 1996.14 The report also suggested that 25 percent of the 254,333 individual property claims had been resolved and 50 percent had been decided upon, which represented an important benchmark in the implementation of the property legislation.
According to the UNHCR report, some 18,665 refugees and 80,172 IDPs returned in 2001,15 92,061 of whom returned to their pre-war homes.
According to the OHR report of 13 October 2003, “the number of refugees returning continues to be strong, exceeding 102,000 in 2002. According to UNHCR statistics, the total of registered returns to and within BiH has risen to nearly 1 million people, including some 390,000 so-called minority returns.”16 With respect to property implementation law, approximately 40,000 claims remain unresolved in both entities according to the OHR report. The UNHCR report stated that some 41,705 refugees and 70,775 IDPs returned in 2002.17
- 16. “24th Report by the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations,” OHR, 2003, accessed May 2, 2011, http://www.ohr.int/other-doc/hr-reports/default.asp?content_id=31003.
- 17. “2002 UNHCR Statistical Yearbook - Bosnia and Herzegovina.”
According to an OHR report from 2003, “by the end of last year the total number of registered returns to and within BiH had risen to nearly 1 million people, including some 430,000 so-called minority returns. Approximately 350,000 refugees and DPs, as estimated by the BiH Ministry for Human Rights and Refugees (MHRR), still had not returned to their pre-war homes, although many among them still expressed the desire to do so”.18 The UNHCR reported that some 14,012 refugees and 40,303 IDPs returned in 2003.19
- 18. "25th Report by the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations,” OHR, 2003, accessed May 2, 2011, http://www.ohr.int/other-doc/hr-reports/default.asp?content_id=32024.
- 19. “2005 UNHCR Statistical Yearbook - Bosnia and Herzegovina,” UNHCR, 2005, accessed May 2,2011, http://www.unhcr.org/4641836a0.html.
In November 2004, the OHR reported that “the Bosnia and Herzegovina authorities successfully assumed responsibility for annex VII implementation” (OHR, 2004). The report suggested that “the property repossession rate rose to 93 percent, the State Law on Refugees and Displaced Persons (amended in September 2003) is gradually being implemented.”20According to a UNHCR report, some 2,447 refugees and 17,948 IDPs returned in 2004.21
- 20. “26th Report by the High Representative for Implementation of the Peace Agreement to the Secretary-General of the United Nations,” OHR, 2004, accessed May 2, 2011, http://www.ohr.int/other-doc/hr-reports/default.asp?content_id=33537.
- 21. “2005 UNHCR Statistical Yearbook - Bosnia and Herzegovina.”
The Annex VII of the framework agreement was implemented in 2004. According to the UNHCR, however, 1,273 refugees and 5,164 IDPs returned in 2005.22
- 22. “2005 UNHCR Statistical Yearbook - Bosnia and Herzegovina.”