Decision 2 (47) on Bosnia and Herzegovina : Bosnia and Herzegovina. 17/08/95.
A/50/18,para.26(2). (Decision)

Convention Abbreviation: CERD
A. Decisions adopted by the Committee

26. The following decisions were adopted by the Committee under this agenda item at its forty-seventh session.

2 (47). The situation in Bosnia and Herzegovina 3/

The Committee on the Elimination of Racial Discrimination,

Concerned at the massive, gross and systematic human rights violations which continue to occur on the territory of Bosnia and Herzegovina, and reiterating its concluding observations adopted at its 1097th meeting, held on 16 March 1995,

Deeply concerned about reports that attacks, particularly on the United Nations Protected Areas of Srebrenica and Zepa, in the Krajina area, as well as in other places, were directed against civilians and civilian installations, and about grave mistreatment of, crimes committed against and killing of innocent civilians, contrary to international humanitarian law and relevant Security Council resolutions,

Alarmed that the hostilities in and around Srebrenica and Zepa, in the Krajina area, as well as in other places, have resulted in a significant flow of refugees and in the eviction and detention of persons, resulting in an "ethnic cleansing" of the areas concerned,

Deeply concerned that according to reports many of the former inhabitants of the United Nations Protected Areas of Srebrenica and Zepa, of the Krajina region and of other places have disappeared and still cannot be accounted for,

Decides:

(a) Firmly to re-emphasize that any attempt to change or to uphold a changed demographic composition of an area against the will of the original inhabitants, by whatever means, is a violation of international law;

(b) To demand that all parties to the conflicts fully ensure the safety of all detained persons under their control and disclose all information concerning all missing persons;

(c) Also to demand that persons be given the opportunity to return safely to the places they inhabited before the beginning of the conflict and that their safety be guaranteed, as well as their effective participation in the conduct of public life;

(d) Urgently to call upon the international community, in particular all the European States, to render assistance to refugees and detained persons directly and through the United Nations High Commissioner for Refugees, the International Committee of the Red Cross and all other organizations involved in assistance to refugees;

(e) Firmly to re-emphasize that all those who commit violations of international humanitarian law or war crimes shall be held individually responsible for such acts, calls upon all States to cooperate fully with the International Tribunal for the prosecution of war crimes committed in the former Yugoslavia, and demands that States implement the necessary legislation to ensure their unimpeded and effective cooperation with the International Tribunal;

(f) Urgently to call for the provision to Bosnia and Herzegovina of all means to protect itself in accordance with Article 51 of the Charter of the United Nations and to live within safe and secure borders;

(g) To express its solidarity with the former Special Rapporteur of the Commission on Human Rights, Mr. Tadeusz Mazowiecki, agreeing with him that the response of the international community has been slow and ineffectual in reacting to the massive human rights violations in Bosnia and Herzegovina;

(h) To transmit the present resolution immediately to the Secretary-General of the United Nations for his attention and, through him, to the General Assembly and the Security Council, and recommends that the United Nations take all necessary measures to provide for the strict implementation of resolutions in the areas referred to and in particular to undertake urgent efforts for the assistance to refugees and detained persons.

1126th meeting
17 August 1995

Footnote

3/ This decision was adopted by a vote. The following members made explanations after the vote: Mr. Diaconu, Mr. de Gouttes, Mr. Chigovera, Mr. Agha Shahi, Mr. Wolfrum, Mr. Rechetov, Mr. Ferrero Costa, Mr. van Boven, Mr. Yutzis, Mr. Song, Mr. Ahmadu, Mr. Banton and Mr. Garvalov. It should also be noted that the vote was preceded by an extensive exchange of views on the matter (see CERD/C/SR.1125).

Mr. Diaconu explained that as the Committee did not vote separately on subparagraph (f), he could not approve the draft. He also stated that he had effectively been precluded from expressing his opinion on the competence of the Committee concerning the contents of subparagraph (f). He objected to the procedure for the adoption of the decision which, in his opinion, did not follow the Committee's rules of procedure. He therefore had abstained, even though he only objected to one paragraph.

Mr. de Gouttes explained that he had abstained for reasons of procedure and substance. Concerning the former, he indicated that he agreed with Mr. Diaconu that the rules of procedure necessitated that there first be a separate vote on subparagraph (f) of the draft. With regard to substance, he stated that he approved of the text in its entirety, with the exception of subparagraph (f) which he believed to be outside the competence of the Committee. He also considered that the text could have better distinguished between the situations in Srebrenica and Zepa on the one hand, and in Krajina on the other. Mr. de Gouttes concluded by regretting that more effort had not been made to find a draft text which would have been acceptable to all members.

Mr. Chigovera explained that he had abstained because he did not agree that subparagraph (f) was within the competence of the Committee. He stated, however, that he supported the draft in general except for that paragraph.

Mr. Agha Shahi explained that his reasons for voting against the draft decision were fully set out in his earlier statement in which he had commented paragraph by paragraph, pointing out the shortcomings which militated against a fair compromise and equitable balance in the text of the draft decision. Nevertheless, if the provisions had been put to a vote paragraph by paragraph, he would have abstained on several of the preambular paragraphs while supporting those dealing with the humanitarian aspects, in spite of their shortcomings. He would certainly have voted in favour of the paragraph urgently calling for the provision to Bosnia and Herzegovina of all means to protect itself in accordance with Article 51 of the Charter of the United Nations and to live within safe and secure borders. He maintained that this paragraph fell squarely within the ambit of the Convention because it was the only way of protecting the lives of the Bosnian Muslims. He reminded the Committee that the right to life was the most fundamental of human rights and must be guaranteed to all regardless of race, ethnicity, descent and so on, as set forth in article 1 of the Convention. He emphasized that as the international community had failed to fulfil its pledge to protect the population of the "safe areas" of Srebrenica and Zepa, the only way to ensure the right to life of this Bosnian group was not to deny it the right of self-defence. Mr. Agha Shahi went on to explain that his main reason for voting against the draft decision was the last paragraph, which did not call for immediate enforcement action by the United Nations Security Council, weakening the force of the recommendation, adopted at its forty-sixth session (March 1995), that called for the application of such measures by the Security Council in Bosnia and Herzegovina. Enforcement action was urgent in view of the fresh wave of "ethnic cleansing" after the fall of Srebrenica and Zepa and the war crimes and crimes against humanity committed against the Bosnian Muslim refugees and displaced persons. The first preambular paragraph, referring to the concluding observations as set forth at the forty-sixth session, had become greatly weakened by the wording of the last paragraph of the draft decision. Taking the draft decision as a whole, Mr. Agha Shahi found it to be unfair, unbalanced and failing to meet the challenge before the Committee. He also noted that two years ago, he was unable to associate himself with the findings of the Committee regarding Bosnia and Herzegovina because they had equated the victims of "ethnic cleansing" with its perpetrators.

Mr. Wolfrum explained his vote in favour of the draft, which he described as a compromise text. He stated that he was not completely happy with every element of the text but he believed that the outcome was more satisfactory than negative. Mr. Wolfrum stated that he was deeply impressed by the arguments put forward by Mr. Agha Shahi, Mrs. Sadiq Ali and Mr. de Gouttes. He would have preferred to have clarified the distinction between the events that occurred in, on the one hand, Zepa and Srebrenica and, on the other, in Krajina; he would also have preferred a much stronger wording condemning "ethnic cleansing". He would have preferred a consensus decision, but the result was the best that could be achieved under the circumstances.

Mr. Rechetov stated that, although the text of the draft was not ideal, in his opinion it was relatively balanced. He expressed concern over reports on atrocities according to which women and children were abused by Croatian troops in villages to which the United Nations had no access. He explained his abstention first by stating that the draft decision made reference to concluding observations adopted during the previous session which had been unbalanced and not fully impartial and because he objected to the reference made to Article 51 of the Charter.

Mr. Ferrero Costa explained that he had voted in favour because he had found the draft decision fair and impartial. He would have preferred had the "ethnic cleansing" of the region been condemned more strongly and had the Committee called more strongly on the European States and international organizations to take more responsibility. He approved of mentioning Article 51 of the Charter in subparagraph (f) and generally agreed with what had been said by Mr. Wolfrum.

Mr. van Boven, having voted in favour of the decision, took the floor to explain his vote and also to respond to some comments made by Mr. Rechetov in relation to what Mr. van Boven had said earlier in the discussion. Mr. van Boven expressed the wish to have been able to make the distinction between what had happened in Zepa and Srebrenica and in the Krajina area. He was therefore not fully satisfied with the text. He had been following quite closely the events in the former Yugoslavia and he agreed with Mr. Rechetov that in the Krajina area the Croats had, in his view, committed war crimes. However, he challenged the view that this could be compared with the reported systematic liquidation of a part of the adult male population of Srebrenica. Had there been a separate vote on the individual paragraphs he would be abstained on subparagraph (f) for reasons also expressed by other members of the Committee.

Mr. Yutzis expressed the regret that he had not been present for the voting. The situation in Bosnia and Herzegovina was a very grave humanitarian situation and everyone knew that the events that produced it could happen in other parts of the world. If he had been present he would have voted in favour of the draft decision and requested that the systematic liquidation of groups of persons be condemned. He expressed the wish that the Committee had condemned systematic crimes more strongly.

Mr. Song, who had voted in favour of the decision, expressed his satisfaction with the draft. However, he indicated that the comments expressed regarding paragraph 10 were justified and that had there been a vote paragraph by paragraph, he would have abstained on subparagraph (f).

Mr. Ahmadu explained that he had voted for the decision because he was a co-sponsor of the text. He believed that "if you can't get what you want, you should like what you get", and that this described his feelings about the draft resolution. He also expressed his profound hope that the situation in the region would soon improve.

Mr. Banton explained that he voted in favour of the motion although procedurally he agreed with Mr. Diaconu and he would have liked to have had the opportunity to vote against subparagraph (f). On points of substance he agreed with what Mr. Diaconu, Mr. de Gouttes, Mr. Chigovera, Mr. Wolfrum and Mr. van Boven said and with some of what Mr. Shahi, Mr. Rechetov and Mr. Ferrero had said. He was only able to vote in favour because he knew he would have the opportunity to make an explanation of his vote.

Mr. Garvalov, in his personal capacity, stated that the reason he had voted in favour of the draft decision was that he felt that the Committee needed to make its position on Bosnia and Herzegovina known at the present session. For him, the language of the text was more satisfactory than unsatisfactory. Had it been possible to conduct a separate vote on each paragraph, he probably would have taken another position on one or two of them. On the whole, however, he felt that he was morally bound to give his support to the decision because it was what the Committee was expected to do.