Ensuring reparations and protecting social and economic rights in war-torn Bosnia and Herzegovina
Impuls 03/2019 by Nela Porobić Isaković, Project Coordinator of Women Organising Change for Bosnia at Women's International League for Peace and Freedom
Discriminatory elements of the BiH legal framework
According to the current legislation in BiH, civilian victims of war can be defined as persons who have sustained, during the war or due to the immediate threat of war, damage to the body, including mental damage or significant deterioration of health, disappearance or death. However, BiH is an administratively divided country and the laws addressing reparations to civilian victims of war (CVW) are situated within legal frameworks of different administrative unites. Based on the Dayton Peace Agreement, BiH today has four administrative units: the State, two entities – Republika Srpska and the Federation of Bosnia and Herzegovina – and Brčko District. One of the entities, the Federation of Bosnia and Herzegovina, is further divided along ten Cantons. Each of the administrative unites has separate legal frameworks dealing with CVW and their rights.
The laws stipulate various rights, for example compensations in the form of monthly payments, health care coverage, psychological support, priority in housing and employment, or free legal aid. The catalogue of rights is not the same for all administrative units. Furthermore, the different categories of CVW – families of missing persons, former camp detainees, survivors of sexual violence, victims of torture etc. – are entitled to different things, and also the realisation of rights for these various categories differs. This allows institutionalized discrimination and hierarchies between CVW, as some CVW have more rights than others.
Many of the rights enjoyed by CVW are actually not being implemented due to difficult bureaucratic procedures and other shortcomings of this administrative approach. Furthermore, the availability of the benefits is highly conditioned by the budgets of the two entities and Brčko District, often leading to delayed monthly payments or a lack of implementation of other rights.
Reparation or (limited) social welfare?
Even though these rights are often discussed as reparations to victims of war, they are situated within the framework of social benefits and economic assistance to disadvantaged groups. They are ascribed to a person because he/she has been recognized as a CVW, but these ‘rights’ are attached to a set of requirements that give them a social welfare character. Firstly, the payments are not based on the violation of rights or harms suffered, but on the disability level. Secondly, similar to social welfare assistance, the persons receiving them are subject to means testing within the framework of other social benefits. In addition, exercising these rights eliminates the chance to make use of other rights, e.g. a CVW receiving a monthly payment as a part of the reparations program is not eligible for other types of social assistance, such as child allowance. However, this does not mean that CWV are worse of than other citizens in need of assistance. Social welfare in BiH is in a desperate need of reforms as only 17% of expenditure of social protection reaches those in most need.
What needs to be implemented is a separation of social welfare assistance and the right to reparations. Every country is obliged to ensure social protection to socially vulnerable citizens, aiming at fighting poverty. On the other hand, the international law requires the states to ensure reparations in situations of serious human rights violations and violations of international humanitarian law, independent of the social status of the person who suffered the crime. For example, a survivor of torture should be entitled to compensations and other reparative measures as a right in its own. On top of that, if that same person is socially vulnerable, he/she should not be excluded from social protection. In BiH this can only happen if reparations and social protections are separated.
Failure to see gendered dimensions of violations and harms
The current legal frameworks in BiH only recognizes wartime sexual violence as gendered harm. The understanding of other violations and harms does not take into account specific gender issues, but relies on a “one solution fits all” approach. For example, there is no understanding of gendered consequences of imprisonment in camps. Imprisonment is predominately understood as a male harm and no particular mechanisms have been put in place to address the harms that are specific for women – reproductive health for example.
In 2015, Women’s International League for Peace and Freedom published a report which analyzed how a gender-sensitive reparations program could be developed in BiH and what gendered aspects of harms and violations would need to be taken into consideration. The report also defines a set of principles to serve as a basis for development of such a program and to ensure that reparation measures truly contribute to the recovery of the social fabric.
Social and economic rights as a prerequisite
One of the violations that the report discusses is violations to social, economic and cultural rights. The harms stemming from this violation include breach of the right to fair and favourable work conditions; discrimination against individuals and groups in accessing health and employment; violation of the right to adequate standard of living; lack of access to education; lack of access to health services and so forth. But social and economic rights were not only violated during the war. They have continued to be violated 25 years later.
In the wake of the destruction caused by the war, economic and social rights create the basis upon which citizens could start to restore their lives. For CVW, access to rights such as housing, jobs, and health care helps to empower them to access both retributive (court justice), and restorative (reparations) measures: in BiH, where the access to economic and social rights has deteriorated over the years, numerous survivors simply do not have means, time or strength to even think of pursuing court justice or dealing with the administrative procedures related to compensations. They are too busy with putting food on their table, putting their kids through school, or just simply finding sustainable livelihoods.
Linking reparations to ongoing reforms in BiH
In general, reparation programs should be put in place as soon as possible after the end of a conflict. They should be included in peace agreements as a way of ensuring government commitment. In order to properly address the need for reparations, an inclusive peace process is a prerequisite. Through the inclusion of civil society, and in particular women, the understanding of the differentiated experiences of women and men, and subsequently the ability to properly address them, increases substantively.
With 25 years passing since the end of the war, Bosnia and Herzegovina is approaching its ‘due date’ when it comes to ensuring comprehensive reparations that can transform the lives of CVW. BiH has failed to address war-time violations and harms properly. Today, the line between the needs stemming from the war and the needs directly related to a prolonged failure of the state to ensure economic and social rights are completely blurred. At this point in time, it is no longer possible to discern what a war-related harm is, and what is not. The people of BiH are faced with a spider net of interwoven and mutually reinforcing problems, needs and injustices.
Current economic reforms, firmly placed within a neoliberal framework, are exacerbating the problems. Their most important element, agreed upon between BiH government and the EU, is austerity. This includes the reduction of the government’s deficits through heavy cuts in public spending. The implementation of these reforms relies on heavily conditioned lending agreements with international financial institutions, such as the IMF, World Bank and EBRD. Thus, BiH does not only lack a comprehensive reparations program, but the neoliberal character of current reforms puts the citizens of BiH, and CVW in particular, in an even more precarious position.
This situation requires a two-dimensional approach. Firstly, BiH needs to revise its current approach to reparations by creating a comprehensive, gender-sensitive reparations programme for all CVW, implemented and funded by the State, and separate from the social welfare system. Secondly, the process of conceptualizing and implementing macro-economic reforms must ensure mechanisms for safeguarding compliance with human rights, in particular economic and social rights. This means: rather than introducing austerity measures and disassembling the public sector, reforms implemented in the country should focus on investments in health care, housing, and education as both; a relief and investment strategy. Safeguarding social and economic rights will ensure that potential restorative effects of reparations are not undermined by a lack of access to opportunities to decent life. Furthermore, access to social and economic rights is beneficial for all the citizens and creates a bedrock for a just social and economic order.