Preventing violence while achieving full civil and political rights for minorities living in post-conflict environments is a challenge. It depends on inclusion, trust, and international support of newly established democratic institutions. A workable outcome also is in the interest of international donor and peace-keeping organizations and countries because support for these external involvements cannot be sustained for long.
Kosovo and Bosnia-Herzegovina have similar socio-political environments, which emerged from inter-ethnic violence and warfare after the dissolution of Yugoslavia in the 1990s. Both countries continue to be guided by international state-building efforts (with heavy involvement from the United States and the North Atlantic Treaty Organization, NATO) and seek the civil and political integration of minorities.
However, the cases of Bosnia-Herzegovina and Kosovo are unlike each other where minority-majority relations are concerned. While Kosovo has been founded by a unilateral declaration of independence by the overwhelmingly Albanian population living south of the Ibar River, Bosnia's structure came as a result of the Dayton Peace Agreement, which prohibited breaking up minority and majority populations into different geographic entities.
It is imperative for both entities to establish a comprehensive legal framework and create institutions that grant all national minorities full civil and political rights. While it appears that Kosovo Albanians have been permitted to have their own state, Bosnians, Croats and Serbs living in Bosnia-Herzegovina continue to be bound together by one state—a major foreign policy aim of the United States.
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, color, 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. How well has this been done in these two different state structures? Implementing good governance principles has been a priority from the start.
The Challenge in Kosovo
Because Kosovo does not yet have the status of an internationally recognized state, it may not sign international agreements such as 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 the U.N. Interim Administration Mission in Kosovo (UNMIK), obliging all persons who undertake 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 to protect 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 the Roma, Ashkali, and Egyptian (RAE) communities. This uneven focus has been criticized frequently by these latter groups' representatives and human rights groups in general.
Since 2000, the Ombudsperson Institution in Kosovo (OIK) has operated under the mandate to investigate alleged human rights abuses by local public and UNMiK administrators. The Anti-Discrimination Law (ADL) of 2004 further endowed the ombudsperson with the responsibility to receive and follow up on complaints concerning discrimination on the basis of core issues, including ethnicity and religion. In spite of the seemingly broad role of the OIK, the importance of the institution has been limited rather than expanded over time. Since the promulgation of UNMiK Regulation 2006/06, alleged human rights violations and discriminatory actions by international actors are no longer part of the OIK's mandate. Even prior to 2006, local and international human rights groups have criticized OIK's lack of enforcement power because it is limited to non-binding recommendations.
Thus, although creating OIK was a major act of institution building for overseeing human rights violations, OIK lacks any muscle to tackle such offenses and cannot act upon human rights violations committed by international administrators, who continue to have a strong presence in Kosovo. The UN set up a Human Advisory Panel in late 2006 to fill this gap, but the panel is limited to nonbinding recommendations by three international judges brought forward to the UN Secretary General's Special Representative, who then has the final say about whether to act upon these findings.
The ADL enacted in 2004 complies with a European Union Council directive to advance equal treatment irrespective of racial or ethnic origin, and to establish 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, including "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 the ICCPR, continue to be hampered in practice.
Human Rights Units
The Organization for Security and Co-operation in Europe has created human rights units in almost all ministries on the national and municipal level. They are responsible for overseeing adherence to human rights and good governance principles in government institutions. A persistent weakness of these units is that they lack adequate numbers of sufficiently trained and qualified civil servants, initiative, and resources, in spite of awareness-raising campaigns and training. The result is that very few cases have been brought to court on the basis of the ADL.
One of most important principles in the ICCPR 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. On September 15, 2008, the president established a Consultative Council for Communities 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 can be praised as an innovative method to involve minorities in high-level decision making, these bodies have yielded limited success. Reasons for this include not just a lack of resources, capacity, and inter-institutional cooperation, but also political interference and a lack of commitment.
Political involvement by minorities is guaranteed by the composition of the Kosovar parliament, which is made up of 120 seats, 10 of which are reserved for ethnic Serbs, and 10 for other smaller minorities, specifically in these numbers: Bosniaks-3, Turks-2, Gorani-1, Roma-1, Ashkali-1, Egyptians-1, and RAE as a group-1. The 2007 elections fulfilled this mandate and three other minority candidates were elected as well. In general, however, free voting is hampered by a number of nonsystemic factors, including family voting in rural areas and vote buying in predominantly Serb areas.
The Challenge in Bosnia and Herzegovina
The ongoing crisis in Bosnia-Herzegovina (BiH) and the inability to form a government or reform the constitution reflects limitations of political arrangements established during the Dayton Peace Accords. 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.
BiH has fulfilled many of its legal requirements to protect its minorities and grant them full civil and political rights on a national level. BiH has been a signatory state to the ICCP since September 1, 1993 and has submitted regular compliance reports since then; it is also 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, legally protecting citizens of BiH who do not belong to the so-called constituent peoples, or Bosniacs, Serbs and Croats.
The law also establishes the Council of National Minorities, an institution that has so far not become operational. This would be an important step; now there is no unified body, such as a supreme court, that has the mandate to uniformly apply the law across the whole of BiH. Instead, four different judicial systems exist, a phenomenon that stands in the way of unifying anti-discrimination mechanisms. Such changes are expected to take some time because current attention is focused on resolving the political deadlock, which, among other consequences, may risk eventual BiH accession to the European Union (EU).
Just as in Kosovo, there is an Ombudsperson Institution in BiH. It also 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 also has been the adoption of the ADL in August 2009. However, the ADL has been implemented less than in Kosovo, and as in Kosovo the law is rarely referred to in court cases. BiH's ADL does not offer the lesbian, gay, bisexual, and transgender (LGBT) community sufficient legal protection; misunderstanding toward the LGBT community persists in all segments of society.
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 toward the local office of Transparency International and the federation's state-owned TV station FTV during 2010 was criticized internationally as undermining freedom of expression and the press. Just as in Kosovo, corruption also remains one of the gravest problems in BiH.
Also, despite an international focus on justice reform, equal access to justice continues to be hampered in practice. This is partly due to insufficient resources, including the lack of sufficient judges qualified to interpret international human rights standards. Further complicating matters are incoherent legal provisions across BiH that relate to freedom of expression: While the Criminal Code of the Federation forbids hate speech, there are no such provisions in the Criminal Code of the Republic of Srpska.
As the last years have shown, BiH's highly decentralized structure—including the rotating three-member presidency—renders national decision making complicated and ineffective. Beyond that, the constitutional provision that only members of the three main ethnic groups are able to run and be elected for the highest political office is discriminatory according to the ICCPR and the Committee on the Elimination of Racial Discrimination, because it violates the right to free and fair elections of all people irrespective of their ethnic origin.
Although the European Court for Human Rights ruled in December 2009 that the constitution was discriminatory for excluding smaller minorities (such as the Roma) from being able to run for the presidency or the House of Peoples, necessary reforms have so far not followed. October 2010 parliamentary and presidential elections took place without implementation of suggested changes. One of the few positive recent developments has been the amendment of the electoral law, which now makes it possible for 17 national minorities to directly elect their representatives in the local elections of 34 municipalities.
Constituent Peoples—National Minorities
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.
While provisions favoring certain ethnic groups have made sense after the violent conflict and the break-up of Yugoslavia, in the long run forms of ethnic power-sharing tend to reinforce differences between ethnicities instead of bringing people closer together by emphasizing their commonalities. Without continued international pressure, it will remain difficult to reverse such constitutional provisions, due to intransigence among the constituent people and their fear of giving up privileges they currently enjoy.
Limits of Good Governance
The approaches to the protecting minority rights in Kosovo and Bosnia-Herzegovina serve as a bracing reminder to policy makers of the limitations of good governance principles. While these countries have taken elaborate steps to introduce protection mechanisms into the legal and political framework, they have had limited practical impact. In both countries, governance is ultimately the responsibility of international and local administrators, and this division of power and accountability creates its own problems.
The particular form of government in BiH has systemic consequences 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 carries the burden of an inherently discriminatory system of governance.
As any attempt to foster full civil and political rights for minorities will depend on demonstrating that violations of these rights have consequences, the system can be undermined by a lack of accountability of international actors operating within the system. Any progress in advancing protection of minority rights will depend on continued international support for further development of a 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.