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J U R I D I C U M

Reparation for Women Victims of Conflict-Related

Sexual Violence in Bosnia and Herzegovina

A European Court of Human Rights Perspective

Jasmina Huskic

VT 2020

RV600G, Rättsvetenskaplig kandidatkurs med examensarbete, 15 högskolepoäng Examinator: Adam Croon

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Abstract

This paper will examine the issue of reparation for women victims of conflict-related sexual violence in the Yugoslav War. It will demonstrate that the authorities of Bosnia and Herzegovina have failed to provide reparation for these women. As will be presented, women who are victims of conflict-related sexual violence suffer from different consequences of it, both physically and psychologically.

Due to the State of Bosnia and Herzegovina have failed to follow their obligation and award reparation, this paper will examine whether the European Court of Human Rights (ECtHR, the Court) can award reparation if a hypothetical case concerning this issue would come before the Court. However, the Court has a narrow and restrictive approach when interpreting Article 41 of the Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) concerning reparation. Therefore, the paper will also examine whether the practice of awarding reparation by the Court can be extended in its jurisprudence and award more than just compensation as reparation. The solution to interpret Article 41 of the ECHR together with the Council of Europe Convention on preventing and combating violence against women and domestic violence, comparative material and soft law as a source of inspiration will be demonstrated. Thus, there are arguments to broaden the approach and therefore, the Court can be able to award reparation. But also extend the practice and jurisprudence of reparation to include other measures of reparations more than just compensation.

There will be issues for the case to be brought before the Court. One will be whether the Court can accept jurisdiction ratione temporis for events occurring before Bosnia and Herzegovina ratified the ECHR in 2002. Case-law by the Court and an analysis of it will show there are indications that the Court can accept jurisdiction ratione temporis. And argue there can be a continuing violation. The other issue is whether there is an obligation of Bosnia and Herzegovina according to the ECHR. As will be presented, there is an obligation of Bosnia and Herzegovina, even before their ratification to the ECHR as it was incorporated domestically through the Dayton Peace Agreement in 1995. The paper will also present arguments that Article 8 (right to respect for private life) and Article 13 (right to effective remedies) of the ECHR has been breached.

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List of abbreviations

ACHR – American Convention on Human Rights CoE – Council of Europe

Dayton Peace Agreement – The General Framework Agreement for Peace in Bosnia and Herzegovina

ECHR – Convention for the Protection of Human Rights and Fundamental Freedoms ECtHR – European Court of Human Rights (the Court)

IACtHR – Inter-American Court on Human Rights ICJ – International Court of Justice

ICTY – International Criminal Tribunal for the former Yugoslavia ILC – International Law Commission

Istanbul Convention – Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence

Permanent Court of International Justice – PCIJ UN – United Nations

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Table of Contents

1. Introduction ... 1

1.1 Background ... 1

1.1.1 The Yugoslav War ... 1

1.1.2 Conflict-related sexual violence... 3

1.1.3 Consequences of conflict-related sexual violence for women ... 4

1.2 Aim and research questions ... 4

1.3 Delimitations ... 5

1.4 Methodology and material ... 5

1.5 Disposition ... 7

2. Legal framework for effective remedies and reparation ... 7

2.1 General obligation under international law ... 7

2.2 European Convention of Human Rights ... 9

2.3 Council of Europe Convention on preventing and combating violence against women and domestic violence ... 10

3. Jurisdiction ratione temporis ... 11

3.1 General rule/principle ... 11

3.2 Blečić v. Croatia ... 11

3.3 Case-law of possibly accepting jurisdiction ratione temporis ... 13

3.4 Continuing violation ... 14

4. Obligation according to the ECHR ... 15

4.1 General obligation according to the ECHR ... 15

4.2 Article 8 of the ECHR ... 16

4.2.1 Private life ... 17

4.3 Is there an obligation of Bosnia and Herzegovina according to the ECHR?... 17

4.4 Can the Court find a breach of Article 8 in conjunction with Article 13 of the ECHR? ... 19

5. Reparation according to the ECHR ... 19

5.1 The Court’s remedial practice ... 20

5.2 Extending the jurisprudence of reparation by the Court ... 21

5.3 Reparation as a European consensus? ... 23

6. Analysis ... 24

7. Conclusion ... 26

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1. Introduction

1.1 Background

Between 20,000 and 50,000 women. That is the estimation of how many women were raped in Bosnia and Herzegovina during the war in the Western Balkans.1 Some women were put

through rape in isolation while some women were raped repeatedly and in a systematic way. In some detention centers, some women were held as sex slaves.2

Women who have survived wartime rape and sexual violence in Bosnia and Herzegovina generally feel that the State neglects their existence and tries to escape their responsibilities towards the women.3 Reports are indicating that many women victims of conflict-related sexual violence, continue to live in poverty, cannot find a job, and still suffer from physical and psychological consequences from their experiences in the war. Many of them also suffer from post-traumatic stress disorder and other problems related to psychologically and physically.4 Access to justice for victims should be secured and effective domestic remedies should be established to ensure adequate, effective and proportionate reparation. There is a gap that needs to be eliminated between accountability for war crimes of rape and other forms of sexual violence and victims attaining access to justice and the adequate, effective and proportionate reparation.5 This is something the authorities have failed to do in Bosnia and Herzegovina.6 This paper will examine the right to effective remedies and the right to reparation. And whether the European Court of Human Rights (hereinafter the Court) can award reparation to women victims of conflict-related sexual violence as Bosnia and Herzegovina has failed this. As well if the Court can extend their jurisprudence for reparation. This paper will have an approach of if a hypothetical case of this issue would go to the Court and address the issues of jurisdiction

ratione temporis and whether Bosnia and Herzegovina have violated Article 8 and Article 13

of the European Convention of Human Rights (ECHR). These issues must be dealt with in order to examine the issue of reparation, which is still the main focus of this paper.

1.1.1 The Yugoslav War

In order to understand why there was a war and why there is an issue of reparations for women survivors of conflict-related sexual violence, it is important to give some background of the war. During the war in 1992-1995 in Bosnia and Herzegovina, rape and other forms of sexual violence were used widespread. Rape was used as a form to implement the strategy of ethnic cleansing and to increase inter-ethnic hatred.7 Women were often gang-raped, sexually

1 Eileen Meier, ‘Prosecuting Sexual Violence Crimes During War and Conflict: New Possibilities for Progress’

(2004) 10 International Legal Theory 83, 86.

2 Human Rights Council (HRC), ’Report of the Special Rapporteur on violence against women, its causes and

consequences, Rashida Manjoo’ (4 June 2013) UN Doc A/HRC/23/49/Add. 3 [22].

3 HRC (4 June 2013) UN Doc A/HRC/23/49/Add. 3 [96].

4 Commissioner for Human Rights, ‘Post-war and durable peace in the former Yugoslavia’ February 2012

Council of Europe

<https://rm.coe.int/CoERMPublicCommonSearchServices/DisplayDCTMContent?documentId=09000016806d2 49e>accessed 16 May 2020.

5 Council of Europe, ‘Report by Thomas Hammarberg Commissioner for Human Rights of the Council of

Europe, Following his visit to Bosnia and Herzegovina on 27-30 November 2010’ (29 March 2011) CommDH (2011)11 3.

6 ibid [156].

7 TRIAL, ‘Written Information for the Adoption of the List of Issues by the Committee on the Elimination of

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enslaved, and impregnated with force in so-called “rape camps”.8 Public rapes were also used in Bosnia and Herzegovina to provoke the flight and expulsion of the whole Muslim communities.9 There are also reports in Bosnia and Herzegovina of Muslim women being impregnated by Serbs and then held in captivity until the late term in order to prevent them from doing an abortion.10

The Socialist Federal Republic of Yugoslavia (hereinafter Yugoslavia) was one of the largest, most developed, and diverse countries in the Balkans in the early 1990s. It consisted of six republics in a non-aligned federation: Bosnia and Herzegovina, Croatia, Serbia, Slovenia, Macedonia11, and Montenegro. Within the Republic of Serbia, two separate regions of Kosovo

and Vojvodina held status as autonomous provinces. Different ethnic groups and religions existed in Yugoslavia. The predominate religions were Orthodox Christianity, Catholicism and Islam.12

In 1991, Croatia and Slovenia declared independence from Yugoslavia, and this was the beginning of the end of Yugoslavia. Three major armed conflicts followed: in Croatia (1991-1995), Bosnia and Herzegovina (1992-(1991-1995), and Kosovo (1998-1999) and two minor conflicts in Slovenia (June-July 1991) and Macedonia (January-August 2001). The conflicts were notable for the gross human rights violations and severe violations of international humanitarian law that Europe had not experienced since the Second World War. These conflicts were linked with the term “ethnic cleansing”, from etničko čišćenje. Thousands of victims got left behind and many have still not received reparation for the harms they endured.13

This paper will only focus on the conflict and the conflict-related sexual violence that happened in Bosnia and Herzegovina though. The conflict there is described as the deadliest in the Yugoslav Federation. Bosnia and Herzegovina’s population were made up of circa 43% Bosnian Muslims, 33% Bosnian Serbs, 17% Bosnian Croats, and 7% of other nationalities. Due to Bosnia and Herzegovina’s central and strategic position, both Serbia and Croatia attempted to claim dominance of large parts of its territory. As a matter of fact, leaders of Croatia and Serbia had already secretly met in 1991 and came to an agreement to divide Bosnia and Herzegovina, and Muslims were left with a small area.14

In March 1992, over 60% of the Bosnian citizens voted for independence in a referendum, which the Bosnian Serbs boycotted. Not long after, in April 1992, Bosnian Serbs supported by the Yugoslav People’s Army and Serbia proclaimed the territories under their control as a Serb

Periodic Reports’ 2012 TRIAL

<https://www2.ohchr.org/english/bodies/cedaw/docs/ngos/Trial_JointNGOsSubmission_ForPSWG_E_BiH_CE DAW55.pdf> accessed 13 May 2020.

8 Council of Europe: Parliamentary Assembly Resolution 1670 (Text adopted by the Standing Committee, acting

on behalf of the Assembly,2009).

9 Jeanne Ward & Mendy Marsh, ‘Sexual Violence Against Women and Girls in War and Its Aftermath:

Realities, Responses, and Required Resources’ (UNFPA)

<https://reliefweb.int/sites/reliefweb.int/files/resources/CCEF504C15AB277E852571AB0071F7CE-UNFPA.pdf> accessed 13 May 2020.

10 ibid.

11 Refers to the country that was called “The Former Yugoslav Republic of Macedonia” and today is called

North Macedonia.

12 United Nations International Criminal Tribunal for the Former Yugoslavia, ‘The Conflicts’ (United Nations

International Criminal Tribunal for the Former Yugoslavia) <https://www.icty.org/en/about/what-former-yugoslavia/conflicts> accessed 13 May 2020.

13 Commissioner for Human Rights (n 4).

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republic in Bosnia and Herzegovina. With an overpowering military dominance and a systematic movement of persecution of non-Serbs, they quickly proclaimed control over more than 60% of the country. Soon after, Bosnian Croats dismissed the Bosnian Government and announced their own republic with the support of Croatia. Civilians of all ethnicities became victims of terrible crimes in the bloody three-sided fight for the territories. Approximately more than 100,000 people were killed and over half of the population, two million people had to flee their homes during the war that lasted from April 1992 to November 1995. A peace deal was concluded in Dayton, USA.15

As a result of The General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Peace Agreement) and to understand the composition of Bosnia and Herzegovina, the country is divided into so-called entities; the Federation of Bosnia and Herzegovina and the Republika Srpska.16

1.1.2 Conflict-related sexual violence

Another important part to understand is what is defined as conflict-related sexual violence. The United Nations (UN) has defined it as events or patterns of sexual violence against women, men, girls, or boys that are happening in a conflict or in post-conflict time and have direct or indirect links with the conflict. It can also be linked with other situations such as political repression.17 The UN has also defined sexual violence as a tactic of war to purposely target civilians. As well as a part of a widespread or systematic attack against civilians.18

Conflict-related sexual violence can occur in many forms, for example rape, forced pregnancy, forced sterilization, forced abortion, forced prostitution, sexual exploitation, trafficking, sexual enslavement, forced circumcision, castration, forced nudity or other forms of sexual violence of comparable severity.19 Hence, when speaking of conflict-related sexual violence, it is not always concerning rape. But as noticed earlier in the introduction, rape was the form of sexual violence that most women were put through during the Yugoslav War. Depending on the case, conflict-related sexual violence can constitute a war crime, a crime against humanity, genocide, torture, and other gross human rights violations20.

Persons who are included as victims of conflict-related sexual violence are those who, individually or collectively, have endured such violence. But it is also family members, for example, children or partners, and children who are born consequently of pregnancy from rape. Individuals who depend on the victim of sexual violence and others can also be victims because of the harm imposed through the violation. Persons may also count as victims if they have endured harm to help victims in distress or prevent victimization.21 Furthermore, a person shall

also regard as a victim no matter if the perpetrator is identified, apprehended, prosecuted, or

15 ibid.

16 The General Framework Agreement for Peace in Bosnia and Herzegovina (initialled on 21 November 1995,

signed on 14 December 1995) (Dayton Peace Agreement) 35 I.L.M. 89, 172 (1996) Annex 4, art 1(3).

17 United Nations Secretary-General (UNSG), ‘Guidance Note of the Secretary-General: Reparations for

Conflict-Related Sexual Violence’ (2014) United Nations Digital Library

<https://www.ohchr.org/Documents/Press/GuidanceNoteReparationsJune-2014.pdf> accessed 12 May 2020.

18 United Nations Security Council (UNSC) Resolution 1820 (19 June 2008) UN Doc S/RES/1820. 19 United Nations Secretary-General (UNSG), ‘Guidance Note of the Secretary-General: Reparations for

Conflict-Related Sexual Violence’ (n 17).

20 ibid. 21 ibid.

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convicted. Also, the familial relationship between the perpetrator and the victim does not matter.22

It is important to mention when speaking of victims and survivors in this paper, the main and only focus is women who have directly suffered from this sexual violence. The reason behind that is, there are greater numbers showing that women and girls are more affected than men and boys because of conflict-related sexual violence23. Another reason argued why more women

are victims of conflict-related sexual violence is their vulnerability.24

1.1.3 Consequences of conflict-related sexual violence for women

Survivors of conflict-related sexual violence suffer from trauma and experience psychological and physical consequences. There are severe and many consequences on the victims’ mental health because of sexual violence. Psychologically, it can lead to radical changes in the victim’s image of themselves, in their social circle relation, and the entire community. As well as how they see the past, present, and the future. In their community, the victim suffers from stigma and is deprived of any social status and value as a person. In many communities, victims are blamed for their fate. In some cases, no matter if it is during war or peace, victims of sexual violence have described as being “buried alive”. In addition, the consequences that the victim has suffered due to sexual violence influences their families’ well-being. Relatives may feel humiliation and shame to the relatives and may also be bullied, singled out, or prevented from freedom of expression. Because of social stigmatization, the victim and their families face difficulties within society.25

Other consequences may include instant injuries such as chronic pain, infection, and infertility. A brutal rape can lead to traumatic gynaecologic fistula, meaning that a woman’s vagina and her bladder or rectum, sometimes both, are ripped apart. Other forms of brutality might be broken bones, mutilation, and amputation of limbs. Psychologically, survivors usually experience serious trauma and depression, sometimes resulting in suicide. Women with e.g. fistula are not able to control the constant flow of urine and/or faeces leaking from the tear. As a result, they are often rejected by their husbands and their communities and cannot work or take care of their families. Women who become infertile, or may think so, might have difficulties to marry or may as well because of infertility be rejected by their husband.26

1.2 Aim and research questions

The aim of this paper is to examine the issue of reparation for women victims of conflict-related sexual violence in Bosnia and Herzegovina during the Yugoslav War. The purpose is to see if the Court can award reparation to those victims and extend their interpretation and extend its jurisprudence of reparation. Three research questions will be used to examine the aim of the paper. The questions are:

Can the Court have jurisdiction ratione temporis for events occurring before Bosnia and Herzegovina ratified the ECHR?

22 United Nations General Assembly (UNGA) Resolution 60/147 (16 December 2005) UN Doc A/RES/60/147. 23 (UNSG), ‘Guidance Note of the Secretary-General: Reparations for Conflict-Related Sexual Violence’ (n 17). 24 Ruth Rubio-Marin (ed), The Gender of Reparations: Unsettling Sexual Hierarchies while Redressing Human

Rights Violations (C.U.P 2009) 19.

25 TRIAL (n 7).

26 Megan Bastick, Karin Grimm & Rahel Kunz, ’Sexual Violence in Armed Conflict: Global Overview and

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• Can the Court award reparation extend its jurisprudence regarding reparation to include victims of conflict-related sexual violence?

The two first questions are aimed to examine the issues if this hypothetical case would come before the Court. The first question will examine if the Court could have jurisdiction ratione

temporis since the conflict-related sexual violence in the Yugoslav War happened before Bosnia

and Herzegovina ratified the ECHR in 2002. The second question will then examine whether there is an obligation of Bosnia and Herzegovina according to the ECHR, especially regarding the period from the Yugoslav War ended until Bosnia and Herzegovina ratified the ECHR. The third question is the question of importance for this paper as this question will eventually answer the aim of this paper. The third question is aimed to analyse the Court’s remedial practice to see if they can award reparation for victims of conflict-related sexual violence. And extend the case-law of the Court regarding reparation. This question is more of importance as there is an issue of women victims of conflict-related sexual violence have not been able to receive reparation due to failure by the authorities in Bosnia and Herzegovina. To bring this issue before the Court and them accepting to award reparation for the consequences due to these gross human rights violations has not been addressed so far on the European level. It can serve as a breakthrough for the future of this issue.

1.3 Delimitations

The paper will begin by explaining the general obligation for effective remedies and reparation under international law. However, throughout the rest of the paper it will not explain the general rule under international law when it comes to jurisdiction ratione temporis and international treaty obligations. As the paper will emanate from a European Court of Human Rights perspective, the focus will be mainly on the case-law by the European Court of Human Rights and the ECHR. The Inter-American Court of Human Rights (IACtHR) will be regarded for the purpose as a comparative element. The African regional system has been completely disregarded as it still is a relatively young regional human rights system. Also the issue of reparation has received insufficient attention in the case-law of the African Commission and no coherent approach exists27. National cases have also been disregarded as the aim is to examine it from a European Court of Human Rights perspective and aims if a hypothetical case would come before that court.

As will be seen, Bosnia and Herzegovina have failed to provide reparation for women who are victims of conflict-related sexual violence from the Yugoslav War. From a legal perspective, it is worth highlighting that this is an issue with a massive injustice and is not included in the jurisprudence of the Court. Due to their restrictive interpretation and approach. But compared to the African regional system, at least there exists some case-law and somewhat an approach.

1.4 Methodology and material

To examine the aim and answer the research questions, the method that will be used to do it will be the legal dogmatic method. The materials that will be used are those legal sources recognized in Article 38 of the ICJ Statute.28 Those legal sources are international conventions,

27 Christine Evans, The Right to Reparation in International Law for Victims of Armed Conflict (C.U.P 2012)

76-7.

28 Statute of the International Court of Justice (adopted 26 June 1945, entered into force 24 October 1945) USTS

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international custom, general principles of law, and judicial decisions as well as highly qualified publicists of the various nations. These sources constitute what is called primary sources. Hard law such as international conventions will be used but as well as soft law such as resolutions by the UN and Council of Europe (CoE). The soft law will be used to provide guidance or as a source of inspiration. Throughout the paper, there will be extensive use of case-law by the Court, which might be obvious as the paper has a European Court of Human Rights perspective. The case-law by the Court will be used to present arguments connected to the different issues of the paper as well as the interpretation of different provisions in the ECHR. A case from the International Criminal Tribunal for the former Yugoslavia (ICTY) will also be used for interpretation.

Not only will primary sources be used but also secondary sources. That is all sources that are not legal materials. Those sources can be materials by the UN, books, articles, websites, and material from international organizations. Some of these sources describe the issues or examine primary sources to analyse them and understand them from different perspectives. Some secondary sources, mainly articles, and books, have also been used to identify some primary sources e.g. the American Convention on Human Rights and also case-law of the Court29.

The legal dogmatic method often involves analysing what arguments are allowed for or against a solution on a certain issue. Usually one distinguishes de lege lata argumentation, which describes the law as it is today, from de lege ferenda argumentation, which suggests solutions to issues which have not been solved or been approached.30 Both de lege lata and de lege

ferenda argumentation will be used throughout the paper. De lege lata will be seen in all

chapters and part of answering the research questions. It will be primarily argued with the use of primary sources. In other words, it will be used to present the provisions relevant to the issue.

De lege ferenda argumentation will be most seen in the third research question to examine

solutions to how the legal situation today could be changed. One could perhaps see a critical legal dogmatic method be used to criticise the findings as well as the consequences and effects of the legal situation. In this aspect, the doctrine will play a larger role to suggest solutions and criticise the law31. The doctrine has an important assignment these days to describe the legal situation today. But also criticise findings. It also has a unique position to change and influence the legal situation.32

In the third chapter, one might see elements of the comparative method. However, the intention has not been to use the comparative method. Rather as comparative elements from another regional system for de lege ferenda argumentation. To put it differently, the specific method to do comparative analysis will not be used. It will be more in the purpose of de lege ferenda argumentation to suggest solutions and put suggestions to a different approach that lacks in the European system. To do this, material that will be used will not be any specific cases by the IACtHR. Rather doctrine will describe the general approach of the case-law on the issue in the third chapter. It will also present the interpretation of the law in the American Convention on Human Rights.

29 Marci Hoffman & Mary Rumsey, International and Foreign Legal Research: A Coursebook (2nd edn, BRILL

2012) 226.

30 Jan Kleineman, ’Rättsdogmatisk metod’ Maria Nääv and Mauro Zamboni (eds.), Juridisk Metodlära

(Studentlitteratur 2018) 36.

31 ibid 35–6. 32 ibid 36.

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As part of the legal dogmatic method, the legal analytic method will be seen throughout the paper. Case-law by the Court will be used to analyse the provisions of the ECHR so that it will not only be a presentation of the law. The legal analytic method is part of the legal dogmatic method to analyse different aspects of law, which is described as more than “just read the law” and only mention important cases.33 In other words, the case-law will be used to describe the

different aspects of the law.

As the perspective of this paper is from a European Court of Human Rights, the ECHR provisions that will be relevant will be mostly Article 13 regarding the right to an effective remedy, Article 8 regarding the respect for private life and Article 41 regarding reparation. Also the Council of Europe Convention on preventing and combating violence against women and domestic violence (the Istanbul Convention) will be used to argue as de lege lata but also in connection to the third research question as de lege ferenda argumentation.

1.5 Disposition

The paper will be divided into seven chapters. Following this chapter, chapter 2 covers the legal framework for effective remedies and reparation under international law as well as the legal framework on the regional level. It also covers the interpretation of Article 13 of the ECHR by the Court from its case-law. It will also cover an interpretation of remedies and reparation in the Istanbul Convention.

Further, chapter 3 covers the issue of jurisdiction ratione temporis and explain how and if the Court could have jurisdiction ratione temporis in this hypothetical case. It will examine case-law by the Court of jurisdiction ratione temporis and also the concept of a continuing violation. Chapter 4 will then cover the issue if the obligation of Bosnia and Herzegovina according to the ECHR exist. First, the chapter begins with explaining the general obligation Contracting States has under the ECHR. Then, the focus will be on Article 8 in conjunction with Article 13 of the ECHR.

Moreover, chapter 5 will cover the main focus of this paper: reparation. It will cover the Court’s remedial practice as well as critics towards it. The remedial practice of the IACtHR will be presented and how the Court could use that for a wider approach to reparation. The chapter will also examine the possibility for the Court to extend its jurisprudence when it comes to reparation.

Chapter 6 will contain an analysis of findings of almost the entire paper, tying together as much as possible, and argue for a solution to if and how the Court can award reparation or at least extend their jurisprudence when it comes to reparation. Finally, chapter 7 will answer the aim and research questions.

2. Legal framework for effective remedies and reparation

2.1 General obligation under international law

The right to an effective remedy is enshrined in both international human rights law and international humanitarian law.34 The obligation to make reparations in case of violations of

33 ibid 25.

34 E.g. Article 8 of the Universal Declaration of Human Rights, Article 2 of the International Covenant on Civil

and Political Rights, Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination, Article 14 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment

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international humanitarian law is provided in Article 91 of the Protocol Additional to the Geneva Conventions of 12 August 1949.35 The right to reparation is also enshrined in Article

75(1) of the Rome Statute.36

The principle of obligation for reparation in international law was established already in 1927 by the Permanent Court of International Justice (PCIJ) in case of Factory at Chorzów.37 The main responsibility to provide reparation to victims who have suffered from human rights violations in their country is primarily carried by States. There is an express legal obligation for States to provide reparation when agents of the State or under the State’s authority have committed violations. Sometimes, it might be suitable for authorities to set up reparation programmes to make sure victims have access to a selection of services and benefits. If agents of other States or non-State actors commit crimes, the State has an obligation to make sure that victims make claims of reparation against the guilty ones, including claims before national courts. If attaining redress from other States or non-State actors is not attainable or if the process for the assistance required by survivors or victims is delayed, the State shall step in and arrange reparation to survivors and victims andthen pursue to reclaim any costs from those who are guilty.38 The goal with reparation is to eliminate, as far as possible, the aftereffects of the illegal

activity and to reconstruct the situation as it was before with no committed illegal action.39 In 2005, the UN adopted the Basic Principles and Guidelines on the Right to a Remedy and

Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Basic Principles and Guidelines).40 It

emphasised that the Basic Principles and Guidelines do not call for new international or domestic legal obligation. It rather identifies mechanisms, modalities, procedures, and methods for implementing current legal obligations under both international human rights law and international humanitarian law who goes hand in hand but contains different norms.41

The Basic Principles and Guidelines establish five different forms of reparation; restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition.42

The Basic Principles and Guidelines also establish a victim’s right to remedies for gross international human rights law and international humanitarian law violations. Among the rights listed, a victim has the right to access relevant information concerning violations and

or Punishment, Article 39 of the Convention on the Rights of the Child, Article 24 of the International Convention for the Protection of All Persons from Enforced Disappearances.

35 International Committee of The Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12

August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3 art 91. It states:

“A Party to the conflict which violates the provisions of the Conventions or of this Protocol shall, if the case demands, be liable to pay compensation. It shall be responsible for all acts committed by persons forming part of its armed forces.”

36 Rome Statute of the International Criminal Court (adopted 17 July 1998, entered into force 1 July 2002)

UNTS 2187 art 75(1). It states:

“The Court shall establish principles relating to reparations to, or in respect of, victims, including restitution, compensation and rehabilitation. On this basis, in its decision the Court may, either upon request or on its own motion in exceptional circumstances, determine the scope and extent of any damage, loss and injury to, or in respect of, victims and will state the principles on which it is acting.”

37 The Factory at Chorzów Case (Germany v Poland) (1927) P.C.I.J. (ser. A) No 9 21. 38 TRIAL (n 7).

39 ibid.

40 UNGA Res 60/147 (16 December 2005) UN Doc A/RES/60/147. 41 ibid.

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reparation.43 This has been an issue in Bosnia and Herzegovina where women have not been fully informed of their rights as they may live in rural areas where few support services are accessible.44 The intention with adequate, effective, and prompt reparation is to advocate justice by redressing gross violations of international human rights law or severe violations of international humanitarian law. Reparation shall be proportional to the severity of the violations and the harm endured. States shall also aspire to establish national reparations programmes and other assistance in the case that the parties liable for the harm endured are unable or unwilling to follow their obligations.45

2.2 European Convention of Human Rights

The right to an effective remedy is provided in Article 13 of the ECHR46. It provides that everyone whose rights and freedoms set in the ECHR are violated shall have an effective remedy before a national authority nevertheless if the violation has been committed by persons acting in an official capacity.

As provided in the article, the Court held in case Pierre-Bloch v. France that the right to a remedy is closely linked to a violation of other protected rights in ECHR47. If one reads Article 13 literally, it seems like that an individual has the right to a national remedy only if a violation has happened. However, the Court argues that an individual cannot claim a violation before a national authority unless the individual can complain to such authority. This means Article 13 cannot be seen as a precondition that there has been a violation of the ECHR. According to the Court, Article 13 requires that where a person claims to have an allegedly prejudiced breach of the ECHR, the person should have a remedy before a national authority to have the claim determined and, if suitable, to obtain redress. Consequently, the Court states that Article 13 must be interpreted as a guarantee for an ”effective remedy before a national authority” for everyone who brings a claim that their rights and freedoms protected in the ECHR have been violated.48

The Court has also interpreted the right to an effective remedy in other cases of its case-law. In case McFarlane v. Ireland, the Court argues that Article 13 is closely linked with Article 35(1) of the ECHR49. Accordingly, applicants must have presented the national courts with the opportunity … to prevent or put right to the violations charged against the State. That assumes there is an effective remedy available in the national system in the matter of the charges. After all, Article 35(1) requires the remedies which are required to be exhausted are those that is connected to the claimed breach. And that those remedies are available and enough. For such existing remedies, they must be sufficiently safe in practice and not only in theory. If that fails

43 ibid.

44 Sabine Freizer, ‘Reparations after Conflict Related Sexual Violence: The Long Road in the Western Balkans’

(2016) Security and Human Rights 1, 13.

45 UNGA Res 60/147 (16 December 2005) UN Doc A/RES/60/147.

46 Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention on Human

Rights, as amended) (ECHR) art 13.

47 Pierre-Bloch v. France, App no 24194/94 (ECtHR, 21 October 1997) [64]. 48 Klass and Others v. Germany, App no 5029/71 (ECtHR, 6 September 1978) [64]. 49 ECHR (n 46) art 35.1. It states:

“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”

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it will lack the requisites: accessibility and effectiveness, and it will be respondent State’s responsibility to make sure these conditions are satisfied.50

In the same case, the Court further develops that the scope of obligations by a Contracting Party under Article 13 differ depending on the nature of the complaint. Additionally, the remedy demanded by Article 13 must be ”effective” both in practice and in law. The notion ”effective” is interpreted that the remedy must be adequate and accessible.51

In case Kudla v. Poland, the Court held that Article 13, as has been stated similarly in the earlier case, guarantees that a remedy is available on a domestic level to enforce the substance of the rights and freedoms in the ECHR. No matter form they might have happened to be secured in the national legal order. Thus, the effect of Article 13 is to require the provision of a domestic remedy to manage with the substance of an ”arguable complaint” under the ECHR and to allow appropriate relief.52 In case Budayeva and others v. Russia, a similar argument was made and

further developed in that case. The Court argued also that the goal is to provide a means where individuals can acquire appropriate relief at a domestic level for violations of their rights under the ECHR before “having to set in motion the international machinery of complaint before the Court.53 Further in the case, the Court stated that the protection under Article 13 does not stretch as to claim a specific form of remedy due to the Contracting States are allowed a margin of discretion in complying with their obligations under this provision.54

The right to an effective remedy is one of the essential characteristics of dividing tasks in the operating system of the ECHR. On the other hand, it offers people who are victims a guarantee that not only does the supervisory mechanisms in Strasbourg protect people’s human rights. But first and most importantly their States should protect them. As mentioned above, the States do have a margin of discretion which leaves the system flexible concerning which specific remedies are offered. However, the Court has settled basic criterion: the remedy shall be accessible, adequate, and effective.55

2.3 Council of Europe Convention on preventing and combating violence against women and domestic violence

The Istanbul Convention56 does not explicitly mention effective remedy but remedies are mentioned in Article 29 of the Istanbul Convention57. The relevant provision is Article 29(2)58 which states that “Parties shall take the necessary legislative or other measures to provide victims, in accordance with the general principles of international law with adequate civil remedies against State authorities that have failed in their duty to take the necessary preventive or protective measures within the scope of their powers.” The paragraph is meant to secure that

50 McFarlane. v. Ireland, App no 31333/06 (ECtHR, 10 September 2010) [107]. 51 ibid [108].

52 Kudla v. Poland, App no 30210/96 (ECtHR, 26 October 2000) [157].

53 Budayeva and others v. Russia, App nos 15339/02, 21166/02, 20058/02, 11673/02 and 15343/02 (ECtHR, 20

March 2008) [189].

54 ibid [190].

55 Antoine Christian Buyse, Post-Conflict Housing Restitution the European Human Rights Perspective with a

Case Study on Bosnia and Herzegovina (Intersentia 2008) 216.

56 Bosnia and Herzegovina ratified the Istanbul Convention on 7 November 2013 and it was entered into force on

1 August 2014.

57 Council of Europe Convention on preventing and combating violence against women and domestic violence,

11 May 2011 (Istanbul Convention) CETS 2010 art. 29.

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victims are provided with remedies against authorities of the State which have failed their duty according to the paragraph.59

The Istanbul Convention mention reparation as well. According to Article 5(2) of the Istanbul Convention60, “Parties shall take the necessary legislative and other measures to exercise to … provide reparation for acts of violence covered by the scope of the Convention.” Article 2(1) of the Istanbul Convention61 stipulates the scope, stating that the “Convention shall apply to all

forms of violence against women … which affects women disproportionately.”

Looking at the Explanatory Report of the Istanbul Convention, the drafters considered it fundamental to enshrine the principle of due diligence in the Istanbul Convention. It is meant to be an obligation of means and not an obligation of result. Parties are required to organise their response to all forms of violence to authorize relevant authorities to diligently … provide reparation for such violence acts. Therefore, Parties have an obligation to take the legislative and other measures to exercise due diligence to … provide reparation and failing that is a violation and impairs or restricts to enjoy human rights and fundamental freedoms.62

Further in the Explanatory Report, reparation is defined as different forms of reparation under international human rights law: restitution, compensation, rehabilitation, satisfaction and guarantee of non-repetition.63

3. Jurisdiction ratione temporis

3.1 General rule/principle

Assuming that all the conditions64 are fulfilled to lodge an application to the Court, the question whether the Court could have jurisdiction ratione temporis arises.

In conformity with general rules of international law regarding the principle of non-retroactivity of treaties, the Court emphasises that a Contracting Party is not bound by the provisions of the ECHR relating to any fact or fact taking placing or any situation which ceased to exist before the ECHR was entered into force with respect to that Party.65 This rule can be found in Article 28 of the Vienna Convention on the Law of Treaties (VCLT).66 The justification for the rule is

legal certainty: there will be an avoidance or decrease by accepting nonretroactivity uncertainties about temporal application of a rule.67

3.2 Blečić v. Croatia

One of the leading cases where the Court assessed jurisdiction ratione temporis is the case

Blečić v. Croatia. The facts of the case will not be presented as it is not relevant for this paper.

59 Explanatory Report to the Council of Europe Convention on preventing and combating violence against

women and domestic violence 11 May 2011 (Explanatory Report) CETS 2010 [161].

60 Istanbul Convention (n 57) art. 5(1). 61 ibid art. 2(1).

62 Explanatory Report (n 59) [59]. 63 ibid [60].

64 The conditions can be found in art. 34 and art. 35 of the ECHR. 65 Blečić v. Croatia, App no 59532/00 (ECtHR, 8 March 2006) [70].

66 Vienna Convention on the Law of Treaties (adopted 22 May 1969, entered into force 27 January 1980) 1155

UNTS 331 (VCLT) Art. 28. It states:

“Unless a different intention appears from the treaty or is otherwise established, its provisions do not bind a party in relation to any act or fact which took place or any situation which ceased to exist before the date of the entry into force of the treaty with respect to that party.”

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Nonetheless, what is relevant is the arguments the Court made regarding jurisdiction ratione

temporis. In that case, the Court did state that the Court is not competent to examine applications

against Croatia when the alleged violations are based on events that happened before the ECHR was entered into force. The issue then whether an alleged violation that was based on a fact happening before or consecutive to a specific date gave rise to difficulties when, as in this case, the facts relied partly within and outside the period of the Court’s competence.68 This is a difficulty potentially in the hypothetical case of this paper. Even though the conflict-related sexual violence in the former Yugoslavia occurred between 1992-1995, the reparation for women victims of the sexual violence during the war has taken time to obtain. Nevertheless, this particular problem will be discussed in the next chapter about obligation according to the ECHR. But is worth noting the issue here as well when there is a situation partly before and after ratification of the ECHR when it comes to jurisdiction ratione temporis. Accordingly, the Court established an appropriate test in Blečić v Croatia.

The Court argues with its case-law that the Court’s temporal jurisdiction is to be decided in connection to the facts essential of the alleged interference. Here, the Court states that the consecutive failure of remedies focusing on redressing that interference cannot bring it within the Court’s temporal jurisdiction.69

Furthermore, an applicant who claims that a State has violated the individual’s rights protected under the ECHR is expected to have tried to apply for redress available under domestic law. If the domestic remedies are not successful and the applicant consequently applies to the Court, a potential violation of the individual’s rights under the ECHR will not be caused by refusing a remedy to the interference. Rather it will be by the interference itself, if it is understood being in the form of a court judgment.70 This means that if the hypothetical case would be brought before the Court, the applicant would have to argue that her right under the ECHR has been violated. In other words, the applicant would have to prove that there has been interference of her right under the ECHR that has caused also a breach of the right to an effective remedy. As has been mentioned earlier in one of the cases of the Court, the right to an effective remedy is closely linked to other protected rights in the ECHR. But it is important to remember as well, that the right to an effective remedy is not a precondition. It should be seen as an individual should be able to claim a violation of the ECHR on a domestic level.71

In case Blečić v. Croatia, the Court further develops that in cases where the interference pre-dates ratification while refusing remedy post-pre-dates ratification, to retain the date of the latter to decide the Court’s temporal jurisdiction would consequently lead to the ECHR being binding for a State. In connection to a fact, that happened before the Convention came into force in respect of that State. This would be contrary to the principle of non-retroactivity of treaties.72 On the other hand, the principle of non-retroactivity is not set in stone: it is not ius cogens. Besides, the exact meaning of the non-retroactivity principle is not as clear as it might look. Facts or acts can happen once or repeatedly and there might be a continuing situation.73 The issue of a continuing situation, or more specifically a continuing violation will be dealt with in chapter 3.4.

68 Blečić v. Croatia, App no 59532/00 (ECtHR, 8 March 2006) [72]. 69 ibid [77].

70 ibid [78]. 71 See chapter 2.2.

72 Blečić v. Croatia, App no 59532/00 (ECtHR, 8 March 2006) [79].

73 Antoine Buyse, ‘A Lifeline in Time - Non-retroactivity and Continuing Violations under the ECHR’ (2006) 75

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Moreover, there should be a difference made between retroactivity of substantive provisions in a treaty and jurisdiction issues. Retroactivity of substantive provisions in a treaty will be denied. However, accepting a type of retroactive jurisdiction may in some cases offer as a ”backdoor” to still be able to apply a treaty retroactively. An international court or other institution can adopt retroactive jurisdiction. But it may also be given under a clause in a jurisdictional treaty.74

This might be an implication that the Court can accept jurisdiction ratione temporis and apply the ECHR retroactively.

3.3 Case-law of possibly accepting jurisdiction ratione temporis

Can it be possible for the Court to accept jurisdiction ratione temporis for our case? As just mentioned, and looking at the Court’s case-law, there might be an implication that the Court does not completely shut the door for jurisdiction ratione temporis. In case Šilih v. Slovenia, the Court noted when applying the principle of non-retroactivity, the Court has been prepared in previous cases to regard facts that happened before the ECHR entered into force. Due to the causal connection with consecutive facts forming the ground of the complaint and the Court’s examination.75

Also, in case Kurić and Others v. Slovenia, the Court stated that it could observe facts that happened before ratification. And as long as they are seen to have created a continuous situation extending beyond the ratification date or may relate to the understanding of facts happening after the ratification date. A situation which had been found unconstitutional in April 2003, still obtained in June 1994, was continuing and negatively affected the applicant more than 15 years after the ECHR had come into force in respect of Slovenia.76

In case Kalashnikov v. Russia, an applicant had criminal proceedings against him initiated in February 1995. In June 1995, he was taken into custody and was convicted in August 1999.77 Russia had ratified the Convention on 5 May 1998 and used the argument of the non-retroactivity of treaties. However, in the deliberations, the Court did take into consideration the effect on the applicant due to the conditions in detention. Which had been identical throughout the time of detention. Hence, the Court stated that they would regard overall the time of detention, including the period before 5 May 1998.78

Another example is the case Janowiec and Others v. Russia. In that case, the Court discusses the reference of underlying values of the ECHR. A required connection of a triggering event to the date of ratification may exist if the triggering event was of a larger magnitude than an ordinary criminal offence and added up to the negation of the very essence of the ECHR. The Court further develops that this may be the case with serious international law crimes e.g. war crimes, genocide, or crimes against humanity according to their definitions given under related international instruments.79 This means in our case, that the Court would not disregard conflict-related sexual violence as an ordinary criminal offence since it has been established that conflict-related sexual violence can constitute these serious international law crimes.80

74 ibid 63, 65.

75 Šilih v. Slovenia, App no 71463/01 (ECtHR, 9 April 2009) [141].

76 Kurić and Others v. Slovenia, App no 26828/06 (ECtHR, 26 June 2012) [240]. 77 Kalashnikov v. Russia, App no 47095/99 (ECtHR, 15 July 2002) [12].

78 ibid [96].

79 Janowiec and Others v. Russia, App nos 55508/07 and 29520/09 (ECtHR, 21 October 2013) [150]. 80 See chapter 1.1.2.

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Another situation where the Court may extend their jurisdiction ratione temporisis when there is a continuing violation that started before the entry into force of the ECHR and continues after that date.81

The International Law Commission (ILC) in its Draft Articles for Responsibility of States for Internationally Wrongful Acts also mentions an act of continuing violations as ”the breach of an international obligation by an act of a State having a continuing character extends over the entire period during which the act continues and remains not in conformity with the international obligation”.82 According to the Draft Articles, this only applies when the act

continues. This means when an act simply has consequences extending over time, a continuing violation cannot be established. But as Buyse states, to complicate it, it does not mean that the consequences themselves might be the form of a violation of other obligations under international law.83 This approach can be crucial for the case in this paper. As been mentioned, the consequences women face due to conflict-related sexual violence last a very long time, if not a lifetime, and can affect their private life. If the Court would find that Bosnia and Herzegovina have not followed their obligation according to the ECHR, specifically Article 8 and Article 13 of the ECHR as will be examined, to help the woman get reparation because of the effects of the sexual violence they endured, it might constitute a continuing violation. Buyse also continues stating that the difficulty in this issue is deciding on one hand what comprises an instantaneous breach with negative effects that lasts and on the other hand a continuing violation. It is only when there is a continuing violation that jurisdiction ratione

temporis will be accepted. Buyse means, rather than speaking of a continuing violation, one

should speak of a continuing situation. Only the part of the situation that takes place after the human rights treaty commence, is a violation. Everything before that time cannot be regarded as a violation.84 Nevertheless, events that happened prior can still be regarded when deciding a violation, as argued in the previous section.85

Also, Buyse raises two points that should be regarded. First, total certainty can never be accomplished since new judgments always refine, change, and might broaden the contents and scope of human rights obligations. Second, from the perspective of the victim, focusing on the obligation itself might not always be a benefit. Due to the negative effects of an act are more fundamental rather than the consequences can be established as a continuing violation of a particular obligation or not. What would be more beneficial is to look at particular circumstances without shifting the focus. To put it differently, a shift from fact to obligation is required to not be made entirely but rather see both as equally important.86

Loucaides stresses there is no issue to comprehend the concept of instantaneous acts and differentiate them, as an own category of violations, in cases where the acts comprise the violation and are completed at once and no lasting effects are followed from that. To put it differently, the violation has been completed once in for all and at a certain point in time without

81 ‘Practical Guide on Admissibility Criteria’, European Court of Human Rights (last updated 31 August 2019)

[238].

82 International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts,

November 2001, Supplement No. 10 (A/56/10) art. 14(2).

83 Buyse (n 73) 63, 74. 84 ibid 63, 75.

85 See chapter 3.3. 86 Buyse (n 73) 63, 76.

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continuing harmful effects. However, there is an issue in respect of cases where acts have continuing, negative consequences.87

Loucaides continues, arguing that if those consequences by themselves, without pointing out the act which caused the consequences, are not established as breaches of the ECHR … then there shall be no issue of it being ”continuing violations”. But the real issue derives in respect of all those cases where consequences that last or effects of an instantaneous act are itself breaching the ECHR.88

In addition, Loucaides makes a good point: the ECHR safeguards rights and not situations. Though, rights that are breached can cause situations, and then a situation might be regarded when determining if it is a case of continuing violations or not. Also, every enduring situation is often caused by an instantaneous act from the beginning. The question is what the test is, in those situations, to decide if there is a prolongation of the act from the very beginning causing a continuing violation. As there is no direct answer to it, Loucaides highlights an approach of a distinction between ”situations” in respect where the ECHR broadens its protection and ”situations” where there is no protection safeguarded in the ECHR. Therefore, the question is then, if a ”situation” is granted the protection of the ECHR will depend on if such a ”situation” can add up to be a continuing violation. Loucaides describes this approach as a ”circular argument”.89

As a result of a critical perspective, Loucaides proposed a test in which some factors can be kept in mind when assessing if there is a continuing violation. One is the nature of the complaint. In other words, the specific act or conduct claimed to be a violation. Second is the effects of the acts or conduct alleged on the rights of the applicant. As has been stated, the Court has in its case-law considered the effects on the applicant90. The third factor is the extent of time of those effects. Finally, the extension of the operation of the act or conduct. Alternatively, the maintenance of the effects because the State has been involved or performed the conduct.91

4. Obligation according to the ECHR

If the Court establishes its jurisdiction ratione temporis, the next issue to look at is whether there is an obligation of Bosnia and Herzegovina under Article 8 of the ECHR as well as Article 8 in conjunction with Article 13 of the ECHR.

It should be noted before examining the issue that Bosnia and Herzegovina ratified the ECHR on 12 July 2002 and it entered into force the same date. However, the ECHR was incorporated into domestic law in Bosnia and Herzegovina through the Dayton Peace Agreement in 1995 which will be presented in chapter 4.3.

4.1 General obligation according to the ECHR

According to Article 1 of the ECHR, the States shall secure the rights and freedoms defined in the ECHR to everyone within their jurisdiction.92 In case Assanidzé v. Georgia, the Court

further developed an interpretation of the provision. The Court stated that the State Parties are

87 Loukis G. Loucaides, The European Convention on Human Rights: Collected Essays (BRILL 2007) 21. 88 ibid 21-2.

89 ibid 23. 90 See chapter 3.3. 91 Loucaides (n 87) 31. 92 ECHR (n 46) art 1.

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responsible for any violation of the rights and freedoms provided within their jurisdiction, or competence, at the time the violation occurred.93

Besides, it is not unthinkable that States will face difficulties to comply with and secure the rights provided under the ECHR in all parts of its territory. Nevertheless, each State Party to the ECHR still has responsibility for events happening anywhere within its domestic territory. Further, the Court states that the ECHR does not only oblige higher authorities of the Contracting States to respect the rights and freedoms it provides. But also, to secure those rights and freedoms to be enjoyed “those authorities must prevent or remedy any breach at subordinate levels.” The higher authorities of the State have a duty to request their subordinates to comply with the ECHR and cannot hide behind their inability to make sure it is respected.94

Moreover, the general duty on the State under Article 1 of the ECHR, according to the Court, calls for and requires the implementation of a domestic system to be able to secure compliance with the ECHR for everyone within the whole State’s territory. The Court implies this with two statements. First, Article 1 does not disregard any element of the Member States’ jurisdiction from the scope of the ECHR. Second, concerning their jurisdiction as a whole – often applied foremostly through the Constitution – that Member States are required to show that they are complying with the ECHR.95

Though, the Court is not competent to protect rights that are not protected in the ECHR according to the general principle of attribution.96

The verb to secure the rights and freedoms according to Article 1 ECHR involves negative and positive duties.97 A negative obligation by a State is to avoid actions that are not compatible

with the ECHR.98 A positive obligation by a State is to assure respect for rights and freedoms protected under the ECHR.99

4.2 Article 8 of the ECHR

Article 8 of the ECHR stipulates the right to respect for private life and family life and reads as following:

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for

the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

93 Assanidzé v. Georgia, App no 71503/01 (ECtHR, 8 April 2004) [137]. 94 ibid [146].

95 ibid [147].

96 Jean-Francois Akandaji-Kombe, ‘Positive obligations under the European Convention on Human Rights: A

guide to the implementation of the European Convention on Human Rights’ (Council of Europe 2007) <https://rm.coe.int/168007ff4d> accessed 17 May 2020.

97 Dinah Shelton & Ariel Gould, ‘Positive and Negative Obligations’ in Dinah Shelton (ed), The Oxford

Handbook of International Human Rights Law (OSAIL 2013) 570 (emphasis added).

98 Ilaşcu and Others v. Moldova and Russia, App no 48787/99 (ECtHR, 8 July 2004) [320,321]. 99 ibid [322].

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For an applicant to claim Article 8, he or she must show that their complaint falls within the four interests stated in the Article. That is: private life, family life, home, and correspondence. In our case the focus will be on private life. The Court firstly decides if the applicant’s claim falls within the scope of Article 8. After that, the Court assesses if there has been interference of that right or if the State’s positive obligations to ensure the right have been committed. The second paragraph of the Article states conditions where a State may interfere. In the same paragraph, it is also stated that limitations are allowed if it is in accordance with the law or prescribed by law, and necessary in a democratic society for the protection of the rights and freedoms of others.100 There is no doubt that in our case, the Court would follow these assessments. Even when it concerns a victim of conflict-related sexual violence. However, the focus will not be on these assessments by the Court.

4.2.1 Private life

The Court recognised for the first time in case X and Y v. the Netherlands that private life is a concept that includes the physical and moral integrity of the person, also the individual’s sexual life.101 The Court has also emphasised that Article 8 establishes a positive obligation to ensure their citizens ‘the right to effective respect for their physical and psychological integrity’.102

Further, this obligation might include the adoption of particular measures, including the provision of effective and accessible implications to protect the right to respect private life.103 The Court did state that its task is not to replace the competent authorities of a Contracting State to decide the appropriate methods to protect persons from an attack on their personal integrity. Rather, the Court reviews the decisions taken by those authorities under the ECHR ‘in their exercise of their power of appreciation’.104

The Court has also argued that mental health must be considered as an essential part of private life connected with the aspect of moral integrity. The right to identity and personal development is included in the protection of Article 8 as well as the right to establish and develop relationships with other individuals and the outside world. The Court also stresses that preserving mental stability is “an indispensable precondition to effective enjoyment of the right to respect for private life”.105

4.3 Is there an obligation of Bosnia and Herzegovina according to the ECHR?

As the general obligation has been presented and also the relevant provision that will be examined in this paper, the question then is whether Bosnia and Herzegovina have an obligation according to the ECHR. It is important not to forget that there is a unique situation with Bosnia and Herzegovina as the ECHR was incorporated into domestic law through the Dayton Peace Agreement but became internationally bound in July 2002.106

Section I of the ECHR as a whole does not inflict any obligations of the State. Rather, it is like a declaration of rights. It is Article 1 of the ECHR107 which forms the declaration of rights into

100 ’Guide on Article 8 of the European Convention on Human Rights - Right to respect for private and family

life, home and correspondence’, European Court of Human Rights (last updated on 31 August 2019) 7.

101 X and Y v. the Netherlands, App no 8978/80 (ECtHR, 26 March 1985) [22]. 102 Odièvre v. France, App no 42326/98 (ECtHR, 13 February 2003) [42]. 103 Airey v. Ireland, App no 6289/73 (ECtHR, 9 October 1979) [33].

104 Sandra Janković v. Croatia, App no 38478/05 (ECtHR, 5 March 2009) [46]. 105 Bensaid v. The United Kingdom, App no 44599/98 (ECtHR, 6 February 2001) [47]. 106 See chapter 4.

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