Lessons from conflict: the role of a strong judiciary and the international community in protecting human rights for successful humanitarian aid.

AuthorGreenwood, Scot W.

Armed conflict between sovereign states creates many problematic issues that civilized societies must address. Reconstruction of war tom nations is restricted by human rights violations, both during and following armed conflict, and the difficulty of providing humanitarian aid to refugees and internally displaced persons (IDPs). (1) These problems often go hand in hand, as most refugees and IDPs are the victims of human rights violations suffered at the hands of conflicting parties. (2) In recent years, many conflict areas have received humanitarian aid and benefited from the involvement of foreign governments to the extent that "nationbuilding" has become a common term associated with humanitarian aid in post-conflict situations. However, due to the complexity of many of the problems faced by refugees and IDPs, the effectiveness of humanitarian aid and nation-building efforts as a whole is variable.

One of the most important elements to ensure that humanitarian aid is successful is the need to maintain protection for refugees and IDPs while assistance is being provided. (3) Protection for refugees and IDPs must be provided concurrently with humanitarian efforts to facilitate proper reintegration with society. (4) More importantly, ensuring that a legal system is in place to adequately address human rights violations is an essential component to providing protection and ensuring that humanitarian aid and nation-building efforts have sustainable, long-term positive effects. (5) The necessary protection that must accompany returning refugees and IDPs cannot be adequately maintained if ongoing human rights violations go unpunished and unresolved. (6) Refugees and IDPs will not feel safe and secure within the society in which they are attempting to be reintegrated without an effective legal system that addresses human rights claims. (7) The efforts of humanitarian aid organizations will founder without the presence of an effective judiciary. (8) The sense of protection provided by a just and functioning legal system will enable humanitarian aid efforts to reach their maximum potential. (9)

The necessity of protecting human rights with a functioning judiciary in order to support successful humanitarian aid effects can be evidenced by an examination of three recent post-conflict situations, namely Bosnia and Herzegovina (Bill), Kosovo, and East Timor. This article will briefly describe the conflicts that occurred in these areas, the human rights violations associated with these areas, and the major problems with the judicial systems of these areas following the cessation of hostilities that allowed on-going human rights violations to occur. The applicable human rights law and judicial mechanisms employed regarding protection of human rights in these areas will also be examined, with particular emphasis placed on the need for a strong judicial system in aiding these mechanisms to function. Also presented is (i) evidence that the protection of human rights is an important component in allowing humanitarian aid and nation building efforts to be successful and (ii) evidence demonstrating that the international community must play a vital role in strengthening the judicial systems of these post-conflict areas.

Lastly, this paper will examine the importance of insuring a strong, functioning judicial system to protect the human rights of refugees and IDPs in the context of two more recent conflicts, namely Afghanistan and Iraq. This article will demonstrate the vital role played by the international community in rebuilding post-conflict judiciaries; specifically, for any post-conflict judicial system to adequately protect human rights and allow for successful humanitarian aid efforts, discussion will highlight the necessity of international community involvement in Afghanistan and Iraq.

BOSNIA AND HERZEGOVINA

The Conflict in Bosnia and Herzegovina

Following the succession of the Republics of Slovenia and Croatia from the former Socialist Federal Republic of Yugoslavia in 1991, (10) the wars that followed this succession and the recognition of Slovenia and Croatia as independent nations by the international community, Bill declared its own independence from the Socialist Federal Republic of Yugoslavia on April 5, 1992. (11) Following this declaration of independence, various ethnic groups vied for territorial control within Bill, most notably Bosnian Serbs, who desired to remain with Serbia to form a "greater Serbian" nation, and Croats, who desired Herzegovina to become part of newly independent Croatia. (12) This conflict was finally resolved with the signing of the General Framework Agreement for Peace in Bosnia and Herzegovina (GFAP) in Paris on December 14, 1995. (13) However, by the time the fighting had halted, it displaced an estimated 640,000 to 800,000 refugees and IDPs. (14)

The GFAP not only ended four years of conflict within BiH, but also ended a conflict "marked by brutal human rights violations on a scale not witnessed in Europe since the end of World War II." (15) Human rights violations involving violence, such as rape and murder were common during the conflict, however, violent human rights abuses continued throughout Bill following the formal end of the conflict. Many of these abuses were experienced by refugees and IDPs returning to their homes following the signing of the GFAP, which guaranteed all displaced persons the right to return to their pre-war home of origin. (16) Refugees and IDPs were subjected to ethnic discrimination, political intimidation, and discrimination in terms of employment, education, and violent abuses throughout BiH. (17) More specifically, minority returnees and IDPs that returned to their former places of displacement were subjected to human rights abuses and thus could not adequately be re-integrated into a functioning civil society.

For example, in the northwestern Bosnian city of Velika Kladusa, a city that experienced one of the highest refugee return rates in Bill following the end of the conflict, returnees and IDPs that had been associated with the Demokratska Narodna Zajednica (DNZ) political party were subjected to ongoing human rights abuses. (18) Supporters of the DNZ had actively fought against the Fifth Corps of the Bosnian Army during the war. Following the return of DNZ affiliated individuals, tensions remained high between supporters of the Bosnian army and supporters of the DNZ. (19) in the Summer of 2001, over five years after the signing of the GFAP, human rights violations continued to occur involving the local citizenry, largely associated with the DNZ (90%), and the local police force, which is affiliated with the Party of Democratic Action--the primary political wing of the opposition to Fikret Abdic's former army. (20) Human rights abuses by Velika Kladusa police became so widespread that the local citizens trusted only the international community and felt that only the local International Police Task Force (IPTF) presence kept the local police from initiating acts of revenge. (21)

In Velika Kladusa, DNZ affiliated returnees and IDPs also experienced human rights violations in other areas. Teachers affiliated with DNZ in the Velika Kladusa region were denied available jobs, even though the applicants were completely qualified (some having received teaching awards). (22) Job postings were still advertised following the rejection of qualified DNZ-affiliated applicants. (23) Children of DNZ affiliated returnees were also removed from the local school and were not allowed to attend class based upon their parent's political affiliation. (24) These abuses are violations of the applicable human rights laws in place in Bill and could be countered by the presence of a strong judiciary enforcing these human rights laws. Although a mechanism had been created under the GFAP to investigate and address human rights violations, one of the primary causes of these on-going abuses was that the judicial system in Bill was too weak to enforce the applicable law. (25) The international community needed to address this issue and take steps to strengthen the judiciary. Before discussing this GFAP judicial mechanism, the steps taken to strengthen its effectiveness, and the impact of strengthening the judiciary on refugee return and humanitarian aid efforts, the applicable human rights law in Bill requires examination.

Applicable Human Rights Law in BiH

The Constitution of BiH, contained within Annex 4 of the GFAP, incorporates international human rights instruments directly into enforceable domestic law, including the Universal Declaration of Human Rights (UDHR). (26) The GFAP provides that the governing bodies established under the treaty, "shall secure to all persons within their jurisdiction the highest level of internationally recognized human rights and fundamental freedoms." (27) Such rights "will be secured by adhering to a number of treaties including the European Convention and the International Covenant on Civil and Political Rights (ICCPR)." (28) "An extensive annex of conventions is also incorporated as law ...," which includes the ICCPR, the 1966 and 1989 Optional Protocols thereto and the 1966 Covenant on Economic, Social and Cultural Rights (ICESCR). (29) According to Ajibola:

The instruments themselves were carefully selected with a view to ensuring that only those of United Nations or world-wide significance were incorporated. An additional feature is that with the exception of the Universal Declaration (which is of fundamental importance), all others are prescriptive and are intended to impose legal obligations. By incorporating them directly into the Constitution, they are enforceable domestically and require no separate incorporating legislation. (30) In fact, "the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), including its Protocols, is directly applicable law and has priority over all other law...

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