Appendix I: A New Institution in the Field: The Human Rights Chamber of Bosnia and Herzegovina
| Published date | 01 December 1997 |
| Date | 01 December 1997 |
| Author | Rona Aybay |
| DOI | 10.1177/092405199701500410 |
| Subject Matter | Article |
529
Part C: Appendices
Appendix I: A New Institution in the Field: The Human Rights
Chamber
of
Bosnia and Herzegovina
-
Rona
Aybay'
Chapter 1 - Introduction
§1Formation
of
the Chamber
1. The Human Rights Chamber
of
Bosnia and Herzegovina was established under the
Dayton/Paris Accords' as an independent judicial body with the function
of
ruling on
cases concerning alleged violations
of
human rights in all parts
of
Bosnia and
Berzegovina. The Dayton/Paris Accords consist
of
aGeneral Framework Agreement
for
Peace in Bosnia
and
Herzegovina and eleven Annexes covering various aspects
of
the
peace in Region.
Parties to the principal instrument (General Framework Agreement) were the Republic
of Bosnia and Herzegovina (represented by its President Alija Izetbegovic), the Republic
of Croatia (represented by its President Franjo Tudjman) and the Federal Republic
of
Yugoslavia (represented by the President
of
Serbia, Slobodan Milosevic).'
Respect for human rights is a fundamental principle on which the whole
body
of
the
Dayton/Paris Accords is based. The principal instrument
of
the Dayton/Paris Accords
(General Framework Agreement) stated that 'observance
of
human rights and the
protection
of
refugees and displaced persons are
of
vital importance in achieving alasting
Peace' and that
'the
parties agree to and shall comply fully with the provisions concerning
human rights set forth in Chapter One
of
the Agreement and Annex
6'
(Article VIII).
A.n
nex 6 whose title is
'Human
Rights' states that the 'Parties) shall secure to all persons
Within their jurisdiction the highest level
of
internationally recognized human rights and
fundamental freedoms' (Article I, first sentence)."
The Constitution
of
Bosnia and Herzegovina (Annex 4) has a parallel provision under
the sub-title
of
human rights:
-------------
Member Human Rights Chamber of Bosnia and Herzegovina; Professor of Law, Ankara University and
Istanbul Bilgi University.
Initiated in Dayton, Ohio (USA) on 21 November 1995 and signed in Paris, France on 14 December 1995.
The General Framework Agreement was 'witnessed' by the European Union Special Negotiator, the French
Republic, the Federal Republic of Germany, the Russian Federation (with a note: 'except for Annex 1'), the
United Kingdom and the USA. The text
of
the Dayton Accords is reproduced in UN Doc. A/50/790-
8/1995/999. The final form which was signed in Paris appears in 35 ILM, 1996,
p.89.
The two texts slightly
differ on some minor points because
of
the corrections
of
certain editorial errors that appeared in the Dayton
text.
Cf
Paul C. Szasz, 'The Protection of Human Rights Thought the Dayton/Paris Peace Agreement on
2Bosnia', 90 AJIL, 1996, p. 301.
Cf
'Concluding Statement by the Participants in the Bosnia Proximity Peace Talks'.
Parties to Annex 6 are the Republic
of
Bosnia and Herzegovina, the Federationof Bosnia and Herzegovina,
and the Republika Srpska. However, the official name of the Republic of Bosnia andHerzegovina was made
'Bosnia and Herzegovina' (Annex 4, Constitution, Article 1(1)).
See for the text of Annex 6, NQHR, Vol. 14, No. I, 1996, pp.
102-110.
Netherlands Quarterly
of
Human Rights, Vol. /5/4, 529-558, /997.
©Netherlands Institute
of
Human Rights (S/M). Printed in the Netherlands.
NQHR
4//997
'Bosnia and Herzegovina and both Entities shall ensure the highest level
of
internationally
recognized human rights and freedoms. To that end, there shall be a Human Rights
Commission for Bosnia and Herzegovina as provided for in Annex 6 to the General Framework
Agreement (DaytonlParis Accords).' (Article II(l»
The Parties to the Dayton/Paris Accords undertake to 'promote and encourage the
activities
of
non-governmental and international organizations for the protection and
promotion
of
human rights' (Article XII(l)). Under the same article
'The Parties join in inviting the United Nations Commission on Human Rights, the OSCE, the
United Nations High Commissioner for Human Rights, and other intergovernmental or regional
human rights missions or organizations to monitor closely the human rights situation in Bosnia
and Herzegovina ...' (Article XIII(2»
Annex 6 provides for the formation
of
aCommission
of
Human Rights for Bosnia and
Herzegovina. The Commission is an independent body consisting
of
two parts:
The Office
of
Human Rights Ombudsman (Ombudsperson)'
- The Human Rights Chamber
The Commission
of
Human Rights for Bosnia and Herzegovina is an integral part
of
the
General Framework Agreement for peace in Bosnia and Herzegovina. The tasks
of
the
Commission are
of
particular importance in the reconciliation process between ethnic
groups in Bosnia and Herzegovina.
The organisation and functions
of
the Commission have certain similarities to those of
the 'Strasbourg Institutions'. Generally speaking, the Human Rights Ombudsperson's
position and functions may be regarded as similar to those
of
the European Commission
of
Human Rights and the Human Rights Chamber may be regarded as 'mirroring' the
European Court
of
Human Rights.6It should be noted, however, that there exist a number
of
significant dissimilarities between the Strasbourg and Sarajevo institutions as well. For
example, while Annex 6 permits introduction
of
individual applications directly to the
Human Rights Chamber, without an examination by the Ombudsperson,' the Strasbourg
system affords no possibility
of
direct application to the Court." On the other hand, the
Committee
of
Ministers
of
the Council
of
Europe which plays an important part in the
functioning
of
the control machinery in Strasbourg has no equivalent in Sarajevo.
In a general sense, the mandate
of
the Commission, as a whole, is to consider alleged
or apparent violations
of
the human rights as defined in the European Convention on
Human Rights and its Protocols. Furthermore, the Commission will consider any
allegations against Parties to the DaytonlParis Accords
of
discrimination
in
the enjoyment
of
rights set out in a number
of
other international instruments."
The term used in the text of Annex 6 is 'ombudsman' but as the first Ombudsman is a lady (Dr Gret Haller
of Switzerland) the term 'Ombudsperson' has become the term mostly used in practice in Bosnia and
Herzegovina.
'Opinion on the Constitutional Situation in Bosnia and Herzegovina with Particular Regard to Human Rights
Protection Mechanisms' adopted by the Venice Commission (15-16 November 1996) Council of Europe,
publication CDL-INF 9, Strasbourg, 1996, p. 5.
A person, non-governmental organisation, or group of individuals claiming to be the victim of a violation
of human rights by any Party may lodge an application directly with the Human Rights Chamber (Annex
6, Article
yIII(I»,
see infra § 6.3.
Protocol No. 11 (restructuring the control machinery) which will introduce a reform in the Strasbourg system
is not yet in effect.
Cf
Article 4 of Protocol No. 11.
See infra §§ 3 and 4.
530
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