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Stateless, Silenced and Subordinated – The Situation of Roma in Bosnia and Herzegovina

This article discusses the situation of Roma in Bosnia and Herzegowina today. Against the background of the International Covenant on Civil and Political Rights (ICCPR), that the country ratified in 1992, the authors spell out the violations of the ICCPR that the Roma population faces. Within the UN complaint mechanism, three possible courses of action to address the discrimination of Roma are described in this article.

Brief Historical Overview

Migration to Today’s Bosnia and Herzegovina

There is little written evidence about the history of the Roma in Bosnia and Herzegovina (BiH). It is assumed that Roma populations departed from India and crossed into the European part of the Byzantine Empire by the 11th century (European Roma Rights Centre, 2004, p. 37).

By the 14th and 15th centuries, Roma had presumably settled in the Balkans (ibid.). The conquest by Ottoman forces over the territory of today’s BiH led to a number of these people converting to Islam, which is why there is still a large group of Muslim Roma living in BiH today (ibid.). During Ottoman times, Roma were presumably treated relatively humanely. Yet, evidence suggests that they were never regarded as fully equal to the rest of the population; for example, they usually lived outside of city boundaries (p. 28). When Ottoman rule ended, attitudes towards the Roma seem to have harshened considerably, including the launching of a campaign to spread the rumour that they lived off “immoral” earnings (p. 29).

World War II and Communist Yugoslavia

During the period of Austro-Hungarian rule and the time of the “Kingdom of Yugoslavia”, founded in 1918, Roma suffered from the tensions that arose between various ethnic groups, such as Serbs, Croats and Slovenes (p. 30). This suffering was especially prominent during World War II, when much of today’s BiH fell under the rule of Croats, and groups such as Roma, Jews and Serbs were persecuted (ibid.). During that era, it is estimated that a total of 28,000 Roma were killed (ibid.). Following this severe mistreatment, their situation in BiH seems to have improved during Tito’s Communist Yugoslavia. As the Roma became officially recognised as a “national minority”, they came to enjoy a large degree of security and welfare (pp. 31-32).

The War Years (1992-1995)

Following the death of Tito and the rapidly spreading sentiment that Communism had failed, the formerly renamed “Socialist Federal Republic of Yugoslavia” became increasingly fractionalized, giving rise to explicit discrimination and hatred against Roma (p. 34). In the course of the war in BiH between 1992 and 1995, Roma were greatly and frequently mistreated by all parties of the conflict (p. 37). They were exposed to horrifying conditions in concentration camps, and it is presumed that as many as 30,000 of them became subject to “racial cleansing” (ibid.). In addition, Roma were frequently enslaved, women raped and entire communities destroyed (p. 10). Many Roma, although having taken no official side in the war, were dragged into it and forced to fight on one side, usually that of their residential area’s majority group (ibid.). This frequently inflicted severe and permanent physical and/or mental damage on these individuals.

Roma in BiH Today

The Roma in BiH have, in the past, been in a difficult position and received systematic, unjust and inhumane treatment. Today, BiH has taken numerous steps to demonstrate its goal of meeting internationally recognised human rights and freedoms (p. 51). The country ratified the International Covenant on Civil and Political Rights (ICCPR) in 1992, thereby agreeing to adhere to the articles of this covenant. Furthermore, BiH includes provisions against discrimination in its own laws and has ratified a number of other human rights agreements, including some that have not been ratified by any other European country (ibid.). Despite these open declarations against human rights violations, there is strong evidence that Roma in BiH are still systematically maltreated. This paper discusses a number of issues raised in a 2004 report by the European Roma Rights Centre (ERRC), placing them in the context of selected articles of the ICCPR. It concludes that, despite BiH’s ratification of the ICCPR, Roma there are met with systematic hostile attitudes and laws. It furthermore suggests three different possibilities for how to inform the UN of these violations, which might then heighten the issue and pressure BiH into improving its treatment of Roma.

Violations of the ICCPR

Equal Treatment Before the Law

Article 2 of the ICCPR prohibits (1) any differential juristic treatment of certain groups within a state, such as those with a specific race, colour, sex, language, origin, political or other opinion, property, birth or other status. Thus, all individuals subject to a state should be under the same jurisdiction. Each state must therefore (2) create necessary laws and other measures in order to secure that this is the case.

Furthermore, (3) the state is responsible for giving all those individuals remedy whose rights under this article have been violated. The individual seeking remedy furthermore has to be granted competent judicial, administrative and legislative authorities, who will make sure that remedies are enforced when they have been granted.

In the case of the Roma in BiH, the ERRC report shows that they currently receive strongly differential treatment before the law which is entirely based on their race. BiH is the only country in Europe where Roma populations are prohibited by law from holding any crucial high political office, including the office of presidency (p. 10). Only members of the three constituent peoples – Bosniaks, Croats and Serbs ‒ are granted full political rights. Minorities such as Roma are excluded from participating in elections as candidates, and voting for representatives to the “House of Peoples”. This prohibition against Roma's participation in political office, in turn, leads to their agendas being insufficiently represented on a state level, reinforcing their vulnerability as a minority ruled by the other three constituent groups (p. 12).

Additionally, Roma are frequently denied or given insufficient remedy for the violations of their rights that took place during the Balkan war (p. 11). Many have not been able to reclaim their pre-war property, or have not gained adequate compensation for property that was destroyed during the war (ibid.). Thus, the policy of granting remedy to those whose rights have been violated is being insufficiently followed.

Free Movement Within the State

A further article of the Human Rights Convention that seems to be violated systematically by the treatment of Roma in BiH is Article 12, which states that (1) everyone who is lawfully within the territory of a certain state should have the liberty to freely move and choose residence within that territory. Furthermore, (2) everybody should be free to leave a country, including the individual's own. These rights (3) can only be violated if a contradictory law exists that aims at protecting national security, public order, public health or morals, or the rights and freedoms of others. Lastly, (4) no one should be deprived of the right to enter one's own country.

Article 12 of the ICCPR is frequently violated in that many Roma in BiH are not allowed to become legal citizens of the state, even though they are tied to BiH on many levels as a result of their birth within the territory (p. 61). A major reason for this policy is that a large number of Roma face difficulties in obtaining birth certificates, for reasons such as the parents’ lack of a stable address or the lack of an officially recognised witness at birth (p. 64). During wartime in the early 1990s, many Roma parents intentionally chose not to register their children with the authorities for fear of being prosecuted. For those who are not recognised as citizens of BiH, it is nearly impossible to gain other important documents, such as those needed to access health care, social benefits and passports (p. 65). The lack of passports, meanwhile, prevent Roma from exiting and entering their country whenever they wish, violating yet another provision of Article 12.

In addition to the passport problem, Roma's housing rights in BiH are frequently neglected, severely inhibiting their right to freely move within the country. Many Roma are still internally displaced. For example, many are scared to return to their pre-war homes because of fear of attacks (p. 109). Generally, the non-Romani authorities responsible for the repossession of personal property are very slow in removing non-Romani settlers from their current habitations, and even once this occurs, they are not seldomly vandalised by current inhabitants before being handed back to the Roma family (ibid.). Many pre-war settlements have been destroyed, and no alternative form of living found for the Roma. In other cases, these settlements are made subject to government plans to use the land for industrial or economic development projects, without considering alternative living plans for affected families (ibid.).

In addition, Roma frequently face difficulties renting private accommodation, either due to their relative poverty, or because of racial discrimination (ibid.). These examples show that they are frequently prevented from moving freely within their home country.

Fair and Public Treatment Before the Law

Article 14 states that (1) all persons shall be equal before courts and tribunals, meaning that everyone should be entitled to “a fair and public hearing by a competent, independent and impartial tribunal established by law”. Furthermore, (2) everyone charged with a criminal offense has the right to be regarded as innocent until proven guilty. (3) To be given appropriate means for defense, everyone should be entitled to (a) be informed properly about the charge, (b) have sufficient time and facilities for the preparation of defense, (c) be present when tried, and to defend him or herself in person or through legal assistance, as well as to be informed of this right to defense, and, (d) have the assistance of an interpreter if the person cannot understand or speak the language used in court. In addition, (4) the person has the right to the conviction and sentence being reviewed by a higher tribunal, (5) he or she is also entitled to receive compensation in case of a miscarriage of justice, and lastly, (6) the person cannot be tried or punished again for an offense for which he or she has already been punished.

Roma in BiH are frequently at the mercy of law enforcement parties, for which they have almost no representation (p. 13). A 1999 survey revealed that approximately 20% of Roma reported that they had suffered “unpleasant experiences” with the police on one or more occasions (p. 87). Attacks by police officers, involving specific targeting through racial profiling, are not unusual; nor are abusive raids on Roma settlements (p. 13). They are frequently accused of crimes on the basis of no or very little evidence, while crimes specifically targeted at them are often not investigated (ibid.). This demonstrates that Roma do not receive equal treatment before the law: they are either regarded as guilty based on too little evidence, or systematically deprived of their rights to adequately defend themselves.

Protection of Women and Children

There is evidence of violations of Article 23, Clause 4 and Article 24. Article 23 describes the role of the state party in regulating the institution of marriage. Clause 4 of this article states that the state party has to take necessary steps to ensure the rights and responsibilities of the spouses. Article 24 defines children’s rights to live without any kind of discrimination, to be registered immediately after birth, and to acquire nationality. In the case of Bosnia and Herzegovina, the state has clearly failed to take such steps to ensure the acquisition of these rights for Roma women and children. Reports of domestic abuse, and thousands of children's being victims of forced labour and exploitation, make little difference when it comes to changing the state policy regarding Roma (Resource Centre on Child Protection and Child Rights Governance, South East Europe). Instead, the discriminatory attitudes and prejudices of the police are reflected in their indifference towards such cases of mistreatment. There is no real commitment to investigating individual cases, nor to dealing systematically with the problem.

Universal Political Inclusion

One of the main concerns when it comes to the discrimination against Roma in BiH is the violation of Article 25 of the ICCPR. According to this Article, every citizen has the right “to take part in the conduct of public affairs, directly or through freely chosen representatives” (United Nations Human Rights Treaties of December 6th, 1966). Furthermore, every citizen has the right to vote and to be elected in accordance with standard elective procedure.

However, according to the Dayton Agreement, the highest positions in government, including the presidential cabinet, can only be occupied by representatives of the three constituent peoples: Bosniacs, Serbs and Croats. Hence, Roma, as well as all other minorities, are deprived from even the possibility of running for elections. In the same fashion, they are excluded from the main legislative body, the House of Peoples, which consists of 15 members: five from each of those constitutive groups. All of these regulations, together, deny any possibility for Roma to shape the policies that influence their own position in the country.

Equality of all People

There are many reports and everyday incidents that serve as evidence of the violation of Article 26, which asserts the equality of all people regardless of their race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status, and secondly asserts their right to be protected from all forms of discrimination. The vulnerable position of the Roma community, resulting from their political exclusion, lack of proper documentation and widespread stereotyping by others, renders them victims of all kinds of abuse and mistreatment. Numerous reports describe instances of racially motivated attacks on Roma, where the perpetrators are non-Roma. However, these reported cases represent only a small portion of the actual number of offenses, mainly because Roma tend to avoid reporting such cases as a result of their lack of confidence in the impartiality of police officers.

Indeed, not only does the law allow discrimination against this minority, but there are many reports about Roma being mistreated and/or physically and verbally abused by the police themselves. Roma are being accused and detained in prisons with little or no evidence against them, and their homes are randomly raided. Individual reports describe instances of violence and the application of torture throughout the process of police questioning (The Non-Constituents, 2004). All these instances represent explicit violations of the human rights of the defendants under Article 26 of the ICCPR.

Issuing Complaints to the UN

Issuing a Complaint to the Human Rights Committee

Having evaluated the far-reaching evidence for ICCPR violations in the case of Roma in BiH, there are a number of possibilities for making official complaints and reports to the UN. Since BiH has not only ratified the ICCPR but allows optional protocols, one possibility is for individuals or groups to issue a direct complaint to the respective committee. It should be kept in mind that such a complaint may only be submitted after all domestic remedies have been exhausted. Furthermore, such a report needs to fulfil a number of premises. First of all, it cannot be politically motivated. It furthermore needs to contain a factual description of the alleged violations, and the rights that are being violated. The language of the complaint must not be abusive, and its submitters needs to be either an individual or group who claim to have been the victim of the alleged violation(s), or an NGO acting on victims’ behalf.

Issuing a Complaint to a Committee other than the Human Rights Committee

In some cases of Roma rights violations in BiH, it might be more effective to issue a complaint to a committee other than the Human Rights Committee, for example, when the rights of Roma women are explicitly violated (Committee on the Elimination of Discrimination Against Women, CEDAW) or when the focus of the complaint is racial discrimination (Committee on the Elimination of Racial Discrimination, CERD). The most efficient avenue for complaint is always to address the receiving committee with the issue that most closely fits the described problem, and to select that particular committee with great care in order to maximize the complaint’s potential impact. However, when choosing the committee to be addressed, one should keep in mind that only those that ratified the optional protocol (and CERD, where the complaint mechanism is already in the core convention), accept complaints. For example, it should be kept in mind that complaint mechanisms for other covenants, such as children’s rights (Convention on the Rights of the Child, CRC) or social and economic rights (International Covenant on Economic, Social and Cultural Rights, ICESCR), are not yet in force.

Writing a Shadow Report 

For every convention that a state has ratified, it is obliged to submit regular reports (Covenant State Report). In many cases, these reports fail to accurately reflect the reality of that state. Therefore, the UN gladly accepts shadow reports, or reports issued by NGOs, to gain an integrated perspective on the matter. These shadow reports can be submitted without the state's having ratified any complaint mechanisms. They can take the form of an overall evaluation of one covenant, or focus on one or more specific problems within that covenant. The UN considers them along with the state report of a certain country, basing its final evaluation on information from both sources. Shadow reports can thus have a great impact on the development of human rights situations in certain states.

References

European Roma Rights Centre (2003). The non-constituents. Rights deprivation of Roma in post-genocide Bosnia and Herzegovina. Country Report Series, no 13. Retrieved from:
http://www.errc.org/cms/upload/media/00/28/m00000028.pdf

Resource Centre on Child Protection and Child Rights Governance (June 2011). South East Europe. Retrieved from: http://resourcecentre.savethechildren.se/countries/south-easteurope/south-east-europe

The United Nations Human Rights Treaties (December 6th, 1966). Retrieved from:          http://www.bayefsky.com/treaties/ccpr.php

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About This Article

HIA Program:

Germany Germany 2012

Authors:

    Ana Jugo
    Ana Jugo
    Senior Fellow
    Sophie Kloos
    Sophie Kloos
    Senior Fellow

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