Document - Bosnia and Herzegovina: Behind closed gates: ethnic discrimination in employment (Including amendment)

BOSNIA-HERZEGOVINA Bosnia and Herzegovina: Behind closed gates: ethnic discrimination in employment (Including amendment)

Bosnia and Herzegovina

Behind closed gates: ethnic discrimination in employment

Introduction
Between 1992 and 1995 the three major ethnic groups of today’s Bosnia and Herzegovina (BiH), Bosniaks (Bosnian Muslims), Bosnian Serbs and Bosnian Croats, fought a bitter conflict for political and economic power. Tens of thousands of people were killed and millions were driven from their homes as attempts were made to create "ethnically cleansed" territories. Tens of thousands of workers in these territories were discriminated against and unfairly dismissed because of their ethnicity.

The General Framework Agreement for Peace in Bosnia and Herzegovina (Dayton Agreement) of 14 December 1995(1) established two semi-autonomous entities in the country, the Federation of Bosnia and Herzegovina (FBiH) and the Republika Srpska (RS).(2) Since the end of the war, the international community has continued to exert significant influence over the political process in BiH, as part of the civilian implementation of the Dayton Agreement, led by a High Representative with far-reaching powers. Throughout the post-war period, the international community has made efforts to encourage the return of those who fled or were driven from their homes, to reduce ethnic discrimination and to ensure that all parts of the country function as multi-ethnic communities.

Despite these efforts, discrimination continues to be one of the most serious obstacles to the return of refugees and internally displaced persons (IDPs). This report focuses on the continuing discrimination against workers from ethnic minorities,(3) including in equal access to work and full reparation (including restitution, compensation, satisfaction, rehabilitation and guarantees of non-repetition) for the discriminatory dismissals suffered in the past. Using illustrative examples of war-time and continuing discrimination and discussing in detail the cases of the Aluminij aluminium plant in Mostar and of the Ljubija iron ore mines near Prijedor, it shows how the BiH, FBiH and RS authorities have failed to address violations of workers’ rights and allowed discrimination to continue.

The right to sustainable return
Since 1994 Amnesty International has campaigned for the millions of people displaced by the conflict in BiH to be guaranteed the right to return to their pre-war homes.(4) The right to return is a key remedy to the massive violations and abuses committed in the context of the conflict and with the purpose of achieving "ethnically cleansed" territories.(5)

The Dayton Agreement, and specifically its Annex 7 on refugees and displaced persons, explicitly recognized the right to return as both a remedy to the human rights violations of unlawful transfers or deportations and as a means to reverse the effects of the "ethnic cleansing" of territories during the conflict.(6) It was also intended to resolve the needs of the large displaced population which has burdened the BiH social and political infrastructure and continues to seriously hamper economic development.

Since the early years of the post-war period, the rate of returns, particularly of those whose ethnic groups formed the minority population in the return area (minority returns) was seen as one of the main indicators of progress in the implementation of the Dayton Agreement. The United Nations High Commissioner for Refugees (UNHCR) estimated the number of registered returns, as of October 2005, at approximately 1,011,000.(7) With the achievement of such figures, the international institutions tasked with the implementation of Annex 7 of the Dayton Agreement have begun the phasing out of those parts of their field missions exclusively working on the return process.(8)

A Property Law Implementation Plan was devised(9) to promote the implementation of property repossession legislation and has successfully supported the handing back to returnees of private and socially owned property. As of January 2005, almost 93 per cent of all claims for repossession of private and socially owned property were reported as "completed cases".(10) However, successful returns, and in particular minority returns, cannot be achieved merely through the return of property. Annex 7 of the Dayton Agreement clearly stipulates that the authorities, beyond allowing the displaced to return, must also create the conditions for them to (re)integrate into their pre-war communities. Such integration appears elusive, and many of the thousands of recorded returns are effectively not sustainable.(11)

Amnesty International believes that those who are still displaced as a result of the conflict, whether inside BiH or abroad, are suffering a continuing and grave human rights violation. This position is reflected in the case-law of the Human Rights Chamber for Bosnia and Herzegovina.(12) Amnesty International considers that the process of return should ensure that returns are sustainable and that the cause of flight and discrimination on ethnic grounds should be removed and effective reintegration made possible.(13)

Obstacles to sustainable return and durable integration

Return-related violence
Despite improvement in the security situation of minority returnees, return-related violence remains a significant impediment to return. According to UNHCR, throughout 2004, some 135 incidents related to the security of returnees were reported, one of which was fatal.(14) Of these, 73 occurred in the FBiH, 56 in the RS and six in the Brčko District. While the overall number of incidents reported has reduced significantly from previous years,(15) the fact remains that in many cases the perpetrators responsible for such attacks remain unpunished. This failure of the criminal justice system to follow up adequately on such politically sensitive crimes undermines the rule of law, and does nothing to inspire confidence in the local authorities and the concept of multi-ethnic integration within a vulnerable and tense returnee community. Safety concerns continue to play an important role in people’s decision not to return, especially those traumatized by having suffered or witnessed war crimes.(16)

One example of such unresolved crimes is the murder of 16-year-old Meliha Durić in the returnee settlement of Džamdžići near Vlasenica in eastern RS on 11 July 2001.(17) The victim was reportedly killed by one shot to her neck, in the second shooting incident to have taken place in the settlement that year. Despite international outcry about the shooting and extensive involvement of the International Police Task Force of the UN Mission in Bosnia and Herzegovina (UNMIBH/IPTF) in the investigation, to date no one has been brought to justice for the attack.

In December 2004 Hrustan Suljić, a witness to a war crimes trial held in Zenica (who reportedly had recently made two witness statements), was shot dead in the garden of his family’s home in Teslić by unknown perpetrators. The fact that the victim was also a returnee leader reportedly created fear and anger in the returnee community in Teslić.(18) The large number of suspected war criminals who remain at large and often in positions of direct or indirect political and economical power adds to the real or perceived lack of security for returnees. Amnesty International has serious concerns that the current criminal justice system is ill-equipped and unwilling to tackle the huge caseload of outstanding war crimes investigations and prosecutions and that the War Crimes Chamber in the BiH State Court, which has recently become operational, cannot alone address this vast problem.(19)

Social and economic factors
Apart from security concerns, the most powerful barriers to potential and sustainable returns are the persistent and endemic problems minorities face in realizing rights to education, to health including access to healthcare, to social security including access to social services, pensions and, above all, the right to work.

In the education system, the protracted difficulties in producing a single curriculum, instead of the "mono-ethnic" ones that are now still often in use in schools,(20) and the continuing existence of schools divided along ethnic lines and operating on the basis of "two schools under one roof"(21) have done little to restore the faith of returnees. A similar but less well-defined system of segregation and/or discrimination is in force in certain areas in the health services, undermining the confidence and trust of returnees.(22)

The international community has spent long years and resources in an effort to render the payment of pensions to returnees a possibility and in theory, pensions should now be available to everyone. However, in practice, many problems remain for returnees claiming pension payments (and back payments), particularly in gaining recognition of the superannuation years of employees dismissed on grounds of their ethnicity. The continuing existence of three separate pension funds, in the FBiH, the RS and in the Brčko District, has in some cases discriminatory effects.(23)

Moreover, vulnerable groups of displaced people such as families with missing or deceased members (often the male head of the household) are overwhelmingly dependent on social benefits(24) and cannot contemplate returning to their pre-war community without having assurances that they will not lose these benefits.

Discrimination in employment
A weak economic situation and the difficulties of economic transition and post-war reconstruction make employment opportunities scarce in general, and in many areas extremely high levels of unemployment negatively affect the entire population.(25) However, endemic discrimination against members of minority communities continues to disproportionately affect returnees, denying them equal access to employment. Without employment many returnees are unable to ensure or maintain an adequate standard of living and, facing destitution, many either decide to go back to their area of displacement, or commute there to continue working. Others emigrate in search of work.

This lack of equal access to employment has its roots in the war, when mass dismissals of workers belonging to the "other" ethnic group, coupled with the illegal expropriation of their businesses and other assets (motivated by both ethnic hatred and intolerance as well as personal gain), featured typically as one of the early stages of a process, eventually resulting in the forcible transfer or deportation of members of minority groups. This was particularly prominent in those regions where the persecution on ethnic grounds was most systematic and ferocious, such as the Prijedor/Banja Luka areas and eastern RS, under the control of the Bosnian Serbs, and certain areas under control of the Bosnian Croats.(26)

The initial stages of the "ethnic cleansing" operation would typically consist of the systematic and brutal removal through abductions and killings of high profile political and business personalities in the area, with the aim of depriving the community targeted as a whole of political, social, and economic leadership and support. This pattern was repeated throughout the country, and persisted for the duration of the war.

In 1999 the OSCE Mission to BiH made a comprehensive study of discrimination in access to employment.(27) This study, relying on information collected by the organization’s field offices, the FBiH Ombudsman’s legal aid offices, as well as on court records, found that there had been widespread dismissals of workers based on their ethnicity or political views during the war, coupled with the subsequent recruitment of workers belonging to the majority ethnic group, remaining or resettling in the area. Many workers were not formally fired but instead were put on so-called waiting lists(28) (a practice which had also been widely used before the war to deal with the surplus of workers during times of decreased production), most often on grounds of their ethnicity, and were not reinstated in their jobs after the end of the conflict.

While efforts have been made to create multi-ethnic employment in government institutions, this process has been painfully slow and cumbersome and has not always proven to be sustainable. For example, the recruitment of minority (returnee) police officers throughout the country by UNMIBH/IPTF, which gathered full pace from 2000 onwards, encountered many problems. Minority officers were often appointed as "token" signs of integration, but subjected to unequal treatment and discrimination. In Srebrenica, less than 10 per cent of police officers belong to minority communities;(29) moreover, it has reportedly been difficult to retain them, because of pay differences between the RS and the FBiH (where members of the police force receive a significantly higher salary).(30)

The situation is similar outside the public administration, in state-owned enterprises and in the private sector, where ethnic discrimination continues to be widespread, negatively affecting the sustainability of returns. Provisions in the entities’ labour laws aimed at ensuring that unfairly dismissed workers (including in those cases where the worker was dismissed on the grounds of their ethnicity) are either compensated or reinstated in their old job, remain largely unimplemented and do not provide effective reparation.

Moreover, in those cases where previously state or socially owned enterprises were privatized,(31) the manner in which privatization has been carried out has often cemented past ethnic divisions, allowing members of the majority ethnic group to gain greater economic power and to continue discriminatory employment practices.(32)

Achieving reintegration
Minority returnees should be guaranteed access to employment, adequate housing, health care and social benefits and education on an equal footing with the majority population. Unless returnees can become truly reintegrated into their pre-war communities and secure an adequate standard of living, the right to return will remain an empty concept.

Amnesty International believes that the widespread and ongoing discrimination against returning refugees and IDPs, based on their ethnicity, perpetuates the effects of war-time policies of "ethnic cleansing" which have led to the ethnic division of the country and causes the unhealed rifts between communities to continue. Moreover, it constitutes a violation of the rights of returnees to be free from discrimination, and has an impact on the right to sustainable return of all people who were displaced by the conflict. Widespread and ongoing discrimination violates international human rights law and standards, as well as domestic law and the provisions of the Dayton Agreement.

If sustainable return is to be facilitated, gaps and ambiguities in current labour legislation and in its implementation, which permit the persistence of discrimination and fail to ensure effective remedies and reparation for those who have faced discriminatory dismissals, must be fully addressed.

1. The prohibition of discrimination in the enjoyment of the right to work

The right to be free from discrimination, including in the enjoyment of the right to work, is enshrined in a number of international human rights standards and treaties to which BiH is party. These include the ICESCR, the International Convention on the Elimination of All Forms of Racial Discrimination (Convention against Racial Discrimination), the International Labour Organization (ILO) Convention No. 111 and Protocol No. 12 to the ECHR, which prohibits discrimination in the enjoyment of any right set forth by law. The Framework Convention for the Protection of National Minorities prohibits any discrimination based on belonging to a national minority.(33)

The Dayton Agreement
Annex 7 to the Dayton Agreement (Agreement on Refugees and Displaced Persons) states that "[a]ll refugees and displaced persons have the right freely to return to their homes of origin" (Article I[1]) and that "[t]he Parties shall ensure that refugees and displaced persons are permitted to return in safety, without risk of harassment, intimidation, persecution, or discrimination, particularly on account of their ethnic origin, religious belief, or political opinion" (Article I[2]). In Article II of the same Annex, the Parties further committed themselves to "create in their territories the political, economic and social conditions conducive to the voluntary return and harmonious integration of refugee and displaced persons, without preference for any particular group".

Annex 6 of the Dayton Agreement (Agreement on Human Rights) committed the parties to "secure to all persons within their jurisdiction the highest level of internationally recognized human rights and fundamental freedoms, including the rights and freedoms provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols and the other international agreements listed in the Appendix to this Annex" (Article I).(34) Many of these instruments explicitly guarantee the right to be free from discrimination.

The Commission on Human Rights
Annex 6 of the Dayton Agreement provided for the establishment of a Commission on Human Rights. The Commission consisted of the Office of the Human Rights Ombudsman and a Human Rights Chamber, a mixed national-international court empowered to issue decisions on individual applications which are final and binding upon the parties. The mandate of the Human Rights Chamber expired on 31 December 2003. A special Human Rights Commission within the BiH Constitutional Court is currently dealing with the backlog of cases registered with the Human Rights Chamber before its closure.

Under Annex 6 of the Dayton Agreement the Commission had jurisdiction to consider "alleged or apparent violations of human rights as provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto" or "alleged or apparent discrimination on any grounds such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status arising in the enjoyment of any of the rights and freedoms provided for in the international agreements listed in the Appendix to this Annex" (Article II).

The Human Rights Ombudsman and the Human Rights Chamber were thus mandated to examine cases of both violations of the rights enshrined in the ECHR, and cases of discrimination (including on grounds of national origin or association with a national minority) in access to rights and freedoms incorporated in a large number of human rights instruments. The Commission’s explicit jurisdiction enabled in particular the Chamber(35) to process a vast number of cases of human rights violations which had their origins in war-time discriminatory practices. Although the Chamber only dealt with applications concerning matters which occurred or continued after 14 December 1995 (the date when the Dayton Agreement entered into force), it found many cases which originated in the war admissible, as they constituted continuing violations.

The Chamber considered the prohibition of discrimination as a central objective of the Dayton Agreement, to which it attached special importance.(36) Relying on the jurisprudence of the European Court of Human Rights and of the Human Rights Committee, the Chamber maintained that any differential treatment is discriminatory if it has no reasonable and objective justification, that is, if it does not pursue a legitimate aim or if there is no reasonable relationship of proportionality between the means employed and the aim sought to be realized.(37)

Corporate responsibility of private companies for human rights
States are the duty bearers of human rights obligations, however the UDHR calls on every organ of society, thus including companies, to promote respect for human rights and to secure their universal and effective recognition and observance. There is an increasing trend that acknowledges the need to apply human rights responsibilities directly when states are unwilling or unable to protect rights of their people. There are moves to develop standards of corporate accountability for human rights. The first step in this direction was the adoption by the UN Sub-Commission on the Promotion and Protection of Human Rights of the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights (UN Norms for Business).

The UN Norms for Business and their commentary set out in a single succinct document a comprehensive list of the human rights norms relevant to the activities of business and, more importantly, are also an extremely useful benchmark by which to judge the adequacy of national legislation to determine whether the governments are living up to their obligations to protect rights.

According to Article 2 of the UN Norms for Business, companies "shall ensure equality of opportunity and treatment […] for the purpose of eliminating discrimination based on race, colour, sex, language, religion, political opinion, national or social origin, social status, indigenous status, disability, age – except for children, who may be given greater protection – or other status of the individual unrelated to the inherent requirements to perform the job, or of complying with special measures designed to overcome past discrimination against certain groups".

The UN Norms for Business are not legally binding per se, but reflect the framework of human rights standards enshrined in a variety of treaties and other instruments that already have international agreement and should therefore be used as the main basis to enable companies to fulfil their responsibilities in relation to human rights.(38)

2. Deepening the divide: ethnic discrimination in employment
Discrimination in employment during the 1992-95 war, as well as in the post-war period, has been endemic and has affected large sectors of the BiH workforce. Workers in all areas of BiH and from all ethnic communities have been victims of discrimination in access to employment. However, such discrimination has been more widespread and systematic in certain areas under Bosnian Serb and Bosnian Croat control, where campaigns of "ethnic cleansing" were most aggressively carried out. Widespread discrimination in employment in the public and private sectors has continued in the post-war period and is one of the most significant obstacles to the return of refugees and IDPs.

War-time discrimination in employment
In its 1999 report on discrimination in employment, the OSCE highlighted several cases of reported discrimination in employment arising from the war. By mid-1992 non-Croat workers were already being reportedly dismissed in the Neum municipality (in today’s FBiH); all non-Croat teachers in the municipality were put on a waiting list in September 1992 and subsequently dismissed in 1995 for failure to report to work (see below).(39) Discrimination in employment was reported in Livno (in present-day FBiH) in late 1992. In one case, an ethnic Serb teacher in the Podhum primary school was reportedly threatened by four members of a paramilitary group who came to the school in November 1992 and told her that she could not work as a teacher any longer because of her ethnicity. Following this episode she was not allowed to work at the school.(40) The OSCE reported that throughout 1993 non-Croat workers in the areas corresponding to present-day Hercegovačko-Neretvanski and Zapadnohercegovački cantons (both in the FBiH) were indeed victims of widespread discrimination in their right to work.(41) In West Mostar (in present day FBiH), in particular, it was reported that "before the expulsions took place, Croat authorities had used administrative powers to harass Muslim residents and progressively curtail their rights" and that "these measures included widespread job dismissals from late 1992".(42) Non-Croat workers were dismissed or (in the Aluminij and Soko factories) were simply prevented from entering their workplace. In September 1992 at least 20 Serb employees were dismissed from the Igman factory in Konjic (in today’s FBiH). The OSCE report stated:

In some cases discriminatory dismissals had no formal explanation and were simply justified by a "violation of working obligations"(43) without further specification, had no date, and were pinned to blackboards inside the firms, meaning that displaced workers, or workers otherwise unable because of the conflict to reach their workplace, were unable to learn about them and therefore could not take legal action to protect their rights.(44) In other instances, they were based on the discriminatory application of legislation providing for the termination of employment of workers allegedly taking part in the conflict and joining enemy forces. A war-time decree by the Republic of Bosnia and Herzegovina provided for the dismissal of employees who took "the aggressor’s part against the Republic of Bosnia and Herzegovina".(45) Similarly, a decree of the Bosnian Croat controlled Croatian Community of Herceg-Bosna, which entered into force in December 1992, provided for the dismissal of all workers "guilty of direct participation, preparation and organization of the rebellion".(46) Even before the adoption of such decrees, in May 1992, some 60 non-Bosniaks were dismissed in Bugojno for being "on the side of the aggressor".(47) Between July and October 1993 virtually all non-Croat workers in Livno and Tomislavgrad were dismissed, apparently following incidents between Bosniaks and the Croatian Defence Council (Hrvatsko vijeće obrane, HVO, the Bosnian Croat Armed Forces). Reportedly, the de facto Bosnian Croat authorities ordered that all those who took part in the "rebellion" be dismissed and their relatives be sent on unpaid leave or forced to accept other jobs.(48)

Other provisions which were applied in a discriminatory way, or otherwise indirectly discriminated against a certain ethnic group, relate to dismissals for absence from work. Under Socialist Federal Republic of Yugoslavia (SFRY) legislation, workers who did not report to work for five days without justification could be dismissed. Similar provisions in the RS and in the Croatian Community of Herceg-Bosna reduced the number of absence days to three.(49) There are numerous reports to suggest that such provisions were used in a discriminatory way to dismiss members of a specific ethnic group. Ethnic Serb workers in Konjic, Jablanica and East Mostar (in present-day FBiH), for example, were reportedly dismissed from Bosniak-owned firms on grounds of their absence from work.(50) Even in those cases where such dismissals were not manifestly discriminatory, they ultimately affected members of ethnic communities who were forced to flee the area. In Tuzla (in today’s FBiH), for instance, dismissals for failure to report to work disproportionately affected ethnic Serbs who had no choice but to leave the region.(51)

A number of cases of discrimination in employment, mostly against ethnic Serbs, were reported in Sarajevo as well, often in connection with the application of provisions on absence from work. The Democratic Initiative of Sarajevo Serbs, a non-governmental organization (NGO) working mostly on the return of Bosnian Serbs to Sarajevo, estimated in 2002 that between 12,000 and 15,000 Sarajevo Serbs, who were unfairly dismissed during the war, were still waiting for compensation,(52) or to return to their old jobs.(53)

Discriminatory dismissals of workers in the Ljubija mines near Prijedor (in today’s RS), which will be described in more detail below, were part of a campaign of systematic ethnic discrimination against non-Serb workers in many areas under the control of Bosnian Serb forces.(54) Workers were often dismissed by the employers and subsequently evicted from premises which the employer owned.(55) Radoslav Brdjanin, a former leading Bosnian Serb political figure, was found guilty in September 2004 of crimes against humanity, grave breaches of the 1949 Geneva Conventions and violations of the laws and customs of war in proceedings held at the International Criminal Tribunal for the former Yugoslavia (Tribunal). The Trial Chamber considered the denial of fundamental rights, including the right to employment, as an element of the crime of persecution and found that the accused ordered persecution with respect to denying the fundamental right to employment.(56) The judgment describes ethnically motivated dismissals in the self-proclaimed Autonomous Region of Krajina (ARK), comprising a number of municipalities (including Prijedor) under Bosnian Serb control. These dismissals were part of a "strategic plan" to link Serb populated areas in BiH together, to gain control over these areas and to create a separate Bosnian Serb state, from which most non-Serbs would be permanently removed.(57) Dismissals of non-Serb workers, initially affecting those holding key positions in public enterprises and institutions and subsequently extended to "all posts important for the functioning economy", were among the first steps taken by the ARK de facto authorities to ensure Bosnian Serb control over public and private enterprises and institutions.(58) Such dismissals were formally sanctioned in decisions of the ARK Crisis Staff, the self-proclaimed highest organ of authority in the ARK. On 22 June 1992, for instance, a decision of the ARK Crisis Staff held that:

By the end of 1992, almost all members of the Bosniak and Bosnian Croat communities living in the ARK had been dismissed from their jobs.(60)

The legacy of the war: continuing discrimination in employment
Ethnic discrimination in employment has continued to remain widespread in the post-war period and remains one of the main obstacles to the return of refugees and IDPs.(61) In many cases post-war dismissals have directly stemmed from the war-time period, in that they have affected workers who had been put on waiting lists, were forcibly displaced, or were otherwise prevented from working during the war.
In 1998 the FBiH Ombudsman reported that "[d]iscrimination in employment and dismissals was, and still is present in the areas of Livno, Tomislavgrad, Bugojno, Stolac, Čapljina, Mostar, Sarajevo" and cited cases arising from past decisions to lay off workers because of their failure to report to work.(62) The 1999 report of the FBiH Ombudsman noted that the ethnic composition of employees continued to resemble the war-time composition when discriminatory policies and practices had been intensively pursued.(63) In addition to episodes of discrimination relating to past war-time violations, in 1999 the OSCE reported "new" cases of discrimination against Bosnian Serbs in Bihać (FBiH), Tuzla, Visoko (FBiH), Konjic and East and West Mostar; against Bosnian Croats in Bihać, Vareš (FBiH), Tešanj (FBiH) and East Mostar; and against Bosniaks in West Mostar, Brčko and the RS.(64) These cases mostly relate to unfair dismissals and to a limited number of instances of reported discrimination in hiring procedures. Also in 1999, the UNHCR reported that:

The UNHCR document also mentions cases of discriminatory employment practices in Vitez (FBiH), where 1,416 Bosniak workers had been reportedly dismissed from a Croat-controlled military factory,(66) and in Glamoč in the Zapadnobosanski Canton (FBiH), where the recruitment to the Croat-controlled company Finvest was used to promote the relocation of ethnic Croats in the area.(67)

According to more recent information, discrimination continues to remain prevalent both in the public administration and in the private sector.(68) In a number of municipalities, data on ethnic discrimination in employment (as well as in the realization of other rights) has been collected and published as part of the Rights-Based Municipal Assessment and Planning Project (RMAP) being conducted by the UNDP and the OHCHR.

In some cases discrimination appears to be the result of deliberate policies and in others is the effect of the lack of any effort, on the part of authorities and employers, to ensure that vacancies are widely advertised to members of all communities, including IDPs formerly living where the job is situated. In its annual report for 2003 the BiH Ombudsman stressed that "[a] significant part of incoming complaints are related to employment discrimination or other kinds of labour disputes".(69) The BiH Helsinki Committee noted in its 2003 annual report that "the consequences of discrimination on ethnic grounds are most obvious in the area of employment" and noted in particular that in most municipalities the overwhelming majority of employees in local institutions belong to the majority ethnic group.(70) The report stressed that discrimination in employment appeared to affect in particular minority returnees. A 2004 ECRI report on BiH states that "minority returnees are widely discriminated against both in private and in public sector employment" resulting in a situation whereby virtually no minority returnees are reported to be employed in the private sector and, in most municipalities, public administrations and state-owned companies reportedly tend to employ only members of the majority ethnic group or persons affiliated with the ethnically based political party in power.(71) The report notes how, as a result of discrimination, "most minority returnees are forced into the grey economy, which further deteriorates their situation in respect of social and health protection".(72)

In 2004 none of the Croat-owned businesses in Stolac (FBiH) reportedly employed Bosniaks.(73) For example, the INKOS textile company, which was privatized and is now under the control of Bosnian Croat owners, reportedly refused to reemploy non-Croat returnees. Production resumed in February 2003, when 65 workers (all of them Bosnian Croats) were hired. In Glamoč, Finvest was still reported in late 2003 as refusing to employ its non-Croat workers unfairly dismissed during the war.(74) In Čapljina(75) (FBiH), out of 53 employees in the municipal administration, only four were non-Croats in 2003.(76) In the Posavski Canton (FBiH), according to local trade unions, only 27 of the 2,650 workers who had lost their jobs during the war and have filed claims under Article 143 of the FBiH Law on Labour (see below), were reemployed, as of 2003.(77) A RMAP report on the predominantly Croat municipality of Orašje (FBiH), stated that "some Serb returnees once held respectable posts like teaching positions, and their attempts to reclaim their pre-war positions are often met with obstruction, at times leading to protracted legal battles". The report includes the case of a Bosnian Serb primary school teacher who, after having obtained her reinstatement, was boycotted by her pupils (or their families). As a result, she was forced to accept a position as a school librarian.(78) In Ključ (FBiH), as of 2004, no Bosnian Serb returnee was employed in the municipal administration.(79) In Sanski Most (FBiH), in recent years, Bosniaks constituted the overwhelming majority of employees in the local administration (as of 2003 they were approximately 94 per cent of the employees, while Bosnian Serbs and Bosnian Croats each made up approximately 3 per cent of the employees).(80)

Discrimination has continued to be widespread in the RS as well. A milling factory in Modriča (RS), which employed before the war a workforce mostly composed of Bosniaks, after its privatization reportedly did not employ a single Bosniak.(81) Although the overall security situation has improved over the past few years, until recently some employers who decided to employ members of minority ethnic groups were exposed to harassment and violent intimidation. In 2002 the car of the director of the Radnik engineering company in Srebrenica (RS) was set ablaze, reportedly because he had decided to reemploy two Bosniak returnees.(82) Also in 2002, a bomb was thrown into a shop in the village of Grapska, in the Doboj municipality (RS). The attack was apparently in connection with the fact that two Bosniaks were working in the shop.(83)

According to the RS Helsinki Committee, in 2004 RS ministries employed 9,656 ethnic Serbs, 445 Bosniaks and 85 ethnic Croats. The situation appeared to be even worse in the local administration and in schools. Out of a total of approximately 3,600 employees in the RS local administration bodies, only 92 Bosniaks and 31 ethnic Croats were reportedly employed in 2004.(84) In Prijedor only three Bosniaks were reportedly employed in the local administration. Together with one Bosniak doctor, one veterinary surgeon, three teachers and the principal of the Kozarac elementary school, they comprised the total number of returnees employed in the public sector in Prijedor.(85) In the Bratunac municipality (RS), as of late 2004, only three Bosniaks were employed in the local administration and there were only three Bosniak employees in the municipality’s schools.(86) In the entire Bijeljina municipality (RS), only approximately 10 Bosniaks were employed in the educational sector (in 2004).(87)

Reportedly, as of early 2005, in the municipality of Jezero (RS) 10 out of 11 employees in the local administration were Bosnian Serbs and the local company Agrocentar did not employ a single Bosniak.(88) In Kotorsko, near Doboj, the management of the local furniture factory Enterijer, reportedly refused to rehire Bosniak returnees who worked for the company before the war.(89) In the municipality of Novi Grad/Bosanski Novi (RS), representatives of a local association of returnees reportedly claim that, out of 6,000 Bosniak who have returned, only three are employed in the local administration, one in the local court, and a small number in the police and schools.(90) Reportedly, not a single returnee is employed in state-owned companies in the municipality. In Srebrenica less than 5 per cent of returnees of working age were employed as of 2004,(91) while the majority of available jobs were in companies which still remained under the control of the RS authorities and of the local leadership of the party in power. The overwhelming majority of the employees in such companies are Bosnian Serbs(92) and reportedly out of 51 managerial positions in public enterprises in Srebrenica, only two are held by Bosniaks.(93) Vitinka, a Zvornik-based company producing juices and mineral water, was reported in 2003 as only employing Bosnian Serbs (whereas before the war approximately 50 per cent of the workforce was composed of Bosniaks).(94) Similarly, the "19 Decembar" construction company was reported as employing 126 workers, all Bosnian Serbs. In Milići (RS) the "6 Avgust" wood processing company, which used to employ before the war some 360 workers, (50 of them Bosniaks), as of May 2003, was staffed by 207 workers, all Bosnian Serbs.(95)

3. Implementation in BiH of the prohibition of discrimination in the enjoyment of the right to work
There is little information available on cases related to discriminatory dismissals and waitlisting procedures before the domestic courts, relying on the labour laws of either entities. It appears that one of the main problems in bringing such cases has been the (perceived) difficulty to prove in court their discriminatory intent. In many cases, both during and after the war, large scale dismissals have been justified on purely economic reasons, such as decreased production and/or the reorganization and restructuring of the company. Although the dismissals disproportionately affected a particular ethnic group, there are relatively few cases in which the workers’ ethnicity was explicitly mentioned as their reason.(96)

The Human Rights Chamber for Bosnia and Herzegovina, before its closure in 2003, played a crucial role in redressing human rights violations, including in a number of cases arising from discrimination in employment. In 2000 the BiH Constitutional Court adopted four partial decisions addressing the ongoing problem of discrimination in the country. However, their implementation has been slow and has been mostly the result of pressure by the international community.

The FBiH and RS labour laws prohibit discrimination in employment. They also contain provisions providing compensation to victims of discriminatory dismissals. However, such provisions remain insufficient. Among other problems, these legal protections do not apply to all workers who lost their jobs as a result of discrimination and compensation, when awarded, is manifestly inadequate and generally regarded as "symbolic". Equally importantly, the mechanisms to consider claims by former workers and to award compensation are not in place or are too limited. The vast majority of claims remain pending.

The Human Rights Chamber
From 1996 to 2003, The Human Rights Chamber for Bosnia and Herzegovina played a crucial role in the implementation of international human rights law, offering interim protection and remedies to victims of discrimination. In its last annual report, the Chamber noted:

In a number of cases, the Human Rights Chamber found that the authorities of the respondent party had discriminated (or tolerated discrimination)(98) against the applicant in their enjoyment of the right to work.(99)

In the Zahirović case the applicant, a Bosniak man who worked for the Livno-Bus Company, was put on a waiting list together with 51 other employees of Bosniak origin at the time of the Bosniak-Croat conflict in the area of Livno. The Chamber did not accept the argument that the waitlisting was justified in view of the company’s financial difficulties, as about 40 non-Bosniak workers had joined the company after the war to perform the work of the Bosniak employees placed on the waiting list. Nor did it accept as a valid ground for differential treatment that the composition of the workforce should reflect the ratio of the different ethnic groups within the population.(100)

Two similar cases were initiated by an ethnic Croat and an ethnic Serb who lived in the Sarajevo suburb of Grbavica, held during the war by Bosnian Serb forces. Both applicants (together with other employees) had been dismissed on the grounds that they had failed to report to work during the war. In one case, the Chamber found that the applicant had been discriminated against because the decision of dismissal had a disparate impact on persons of non-Bosniak origin and the majority of employees who were required to reapply for their jobs after the war ended were non-Bosniaks.(101) In the other case, the Chamber noted that "persons of Serb origin living in Grbavica and employed in the Federation were generally unable to report to work during the armed conflict and were the persons most likely to suffer termination of their employment by operation of the statutes in place at the time the applicant stopped reporting to work".(102)
In relation to the proceedings initiated by the applicants seeking redress before domestic courts, the Chamber consistently found violations of Article 6[1] of the ECHR.(103) In one case, the Human Rights Chamber found that the courts of FBiH "perpetuated the denial of the applicant’s right to work".(104) In two other cases, the Chamber concluded that the finding of the domestic courts rejecting the applicants’ claims against dismissals were discriminatory in themselves.(105) In this respect, the Chamber noted:

In 2002, more than 500 applications were pending before the Chamber alleging discriminatory termination of labour relations, mostly on grounds of ethnic or national origin. A special Human Rights Commission within the BiH Constitutional Court is currently dealing with the backlog of cases registered with the Human Rights Chamber before its closure. The cases still pending before the Human Rights Commission include a collective application by workers of Aluminij Mostar.

Given the many protracted problems associated with the efficient functioning of the local courts in BiH, and their general reluctance to apply international human rights law, Amnesty International remains concerned that the closure of the Chamber, whose mandate expired on 31 December 2003, has resulted in a dramatic loss of protection for victims of human rights violations, in particular violations of social and economic rights such as the right to work.(107)

The 2000 Constitutional Court decisions
Annex 4 of the Dayton Agreement, which forms the BiH Constitution, states in its preamble that the Constitution is based upon the "respect for human dignity, liberty and equality". Article II[4] contains an explicit provision on non-discrimination which stipulates that "[t]he enjoyment of the rights and freedoms provided for in this Article or in the international agreements listed in Annex I to this Constitution shall be secured to all persons in Bosnia and Herzegovina without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status".

In 2000 the BiH Constitutional Court issued four partial decisions which set out a range of fundamental measures, inter alia, to address the ongoing problem of discrimination in the country.(108) In keeping with the preamble of the Constitution, the Constitutional Court decided in Partial Decision III(109) that all three constituent peoples of BiH (Bosniaks, Serbs and Croats) should enjoy equal status throughout the country, regardless of which entity they live in. In its reasoning the Constitutional Court stated that "a government must represent the whole people belonging to its territory without distinction of any kind thereby prohibiting […] a more or less complete blockage of its effective participation in decision-making processes" (Paragraph 55), and that:

The Constitutional Court concluded that, following the entering into force of the Dayton Agreement, there was and still is a "systematic, long-lasting, purposeful discriminatory practice of the public authorities" of both the RS and the FBiH through "direct participation in violent incidents or by abstaining from the obligation to protect people against harassment, intimidation, or violent attacks on grounds of ethnic origin only" and through their failure "to establish necessary political, economic and social conditions conducive to the voluntary return and harmonious reintegration of refugees and displaced persons, without giving preference to any particular group", as provided by Article II[5] of the BiH Constitution (Paragraphs 95 and 138). The Constitutional Court ruled that, in order to combat the problem, the authorities should not only refrain from discrimination, but also had a "positive obligation to protect against discriminatory acts of private individuals and, with regard to refugees and displaced persons, to create the necessary political, social and economic conditions for their harmonious integration" (Paragraph 81).

The implementation of the Constitutional Court’s decisions has been cumbersome and slow. Without active engagement of the OHR it is doubtful the process would have taken off at all. In order to implement the Constitutional Court’s decisions, both entities needed to amend their respective constitutions substantially, and to this end the OHR established multi-ethnic Constitutional Commissions in January 2001 to draft the necessary amendments. The Constitutional Commissions were also mandated to ensure interim protection against discrimination and could veto laws and policies which they deemed discriminatory in the entity parliaments.

After protracted discussions between politicians representing key political parties, on 27 March 2002 the Sarajevo Agreement was reached which presented a compromise solution on several elements crucial to the implementation of the decisions. The agreement proposed inter alia that there be proportional representation of the constituent peoples in the entities’ public institutions (that is, in the entity, cantonal and municipal governments, and in the courts on all levels).(110)

The implementation of the Constitutional Court decision at the cantonal and municipal level has appeared to be particularly difficult, subject to vague and ambiguous criteria and hence an easy target for obstruction and indefinite delay. Some of the obstacles in this process lie in the fact that those employed in public institutions at the municipal level, i.e. in education, healthcare and social services, as well as those with civilian functions in the police, while to a large extent currently belonging to a mono-ethnic workforce, hold valid employment contracts.

The Fair Employment Practices Strategy
In November 2001 the OSCE (in conjunction with the OHR, the UNHCR and the OHCHR) adopted the Fair Employment Practices Strategy, which laid down standards for employment practices and mechanisms to promote inclusive and non-discriminatory hiring practices by private and public employers in the country and to enhance free movement of workers.(111) This strategy put forward fair employment principles, based on international standards as well as national legislation (see box).

In 2002 OSCE field offices established a Fair Employment Project in some key minority return areas. Targeted employers were asked to agree to implement non-discriminatory employment polices in return for technical advice and assistance from the OSCE. By mid-2003, 24 employers, seven of them municipal administrations and 17 private and state-owned companies, had participated in the project. The project also comprised a number of training seminars and roundtables involving NGO and trade union representatives, employers, and the relevant authorities, which continued in 2004.(112)

The implementation of the Fair Employment Project marked a positive step in promoting future fair and non-discriminatory practices. However, judging by the vast number of unresolved cases of continuing employment discrimination, it appears that a far more comprehensive and consistent action plan to address discrimination in employment, as well as more effective and speedier access to redress mechanisms, continue to be needed.

The fair employment principles
1. All workers have the right to equal treatment regardless of sex, race, colour, nationality, language, religion, political or other opinion, ethnic or social origin, property, birth, membership or non-membership of a trade union, disability or other status.
2. These principles apply to all conditions of employment, including recruitment, promotion, discipline, dismissal, lay-off, pay, benefits, facilities, services, transfer, training and membership and benefits of workplace organisations. In particular, employment opportunities at all levels, including management, should be publicly and widely advertised according to objective criteria and open to all.
3. Workers have the right not to be subjected to harassment on the above grounds where this had the purpose or effect of creating an intimidating, hostile, offensive or disturbing environment. In particular, political, nationalistic or religious images or phrases and other manifestations that have this purpose or effect should be removed.
4. Workers should not be subjected to apparently neutral criteria that adversely impact workers to whom any of the above grounds apply, unless those criteria are objectively justified and proportionate.
5. Workers should not be subjected to any detriment as a result of raising issues under these principles.
6. Employers should ensure that all workers are aware of these principles and that these principles are put into effect.

Entity labour law provisions
In its 1999 study of discrimination in employment, the OSCE recommended the introduction of a national labour legislation prohibiting discrimination in employment on any grounds.(113) Despite these recommendations, labour legislation still only exists in BiH on the level of the entities.

Prohibition of discrimination
The FBiH and RS labour laws(114) were both amended in 2000 in order to incorporate anti-discrimination provisions.

Article 5[1] of the FBiH Law on Labour prohibits discrimination against workers and persons seeking employment on the basis of "race, colour, sex, language, religion, political or other opinion, ethnic or social origin, financial situation, birth or any other circumstance, membership or non-membership of a political party, membership or non-membership of a trade union, physical or mental impairment" in respect of recruitment, training, promotion, terms and conditions of employment, cancellation of the labour contract or other issues arising out of labour relations. Victims of discrimination in employment are explicitly granted the right to bring a complaint before the competent court (Article 5[3.1]), which can then order employment, reinstatement, or the provision or restoration of any right arising from the contract of employment (Article 5[3.3]). In those cases where the complainant presents obvious evidence of discrimination, the FBiH Law on Labour provides that the respondent party has the onus to present evidence that any differential treatment was not made on discriminatory grounds (Article 5[3.2]).

Article 5 of the RS Law on Labour provides that "[a] worker, or a person seeking employment, may not be placed in an unequal position when trying to realize the right to work or the right to find employment, on grounds of race, ethnic origin, skin colour, sex, language, religion, political or other conviction, social origin, financial situation, membership or non-membership of a trade union or a political organization, physical or mental health or other characteristics not directly related to the nature of the employment". Article 5 also recognizes the right of victims of such discrimination to bring a complaint before a competent tribunal, with the authority to order an employer to reinstate a complainant and to ensure that their right to adequate reparation is respected.

Severance pay for dismissed workers and workers placed on waiting lists
In those cases where workers were unfairly dismissed on the grounds of their ethnicity from state-owned companies, the state failed to respect the principle of non-discrimination in the enjoyment of the right to work. Where they were dismissed by private companies, the state failed to protect workers from discrimination. In all cases, workers who were dismissed in a discriminatory manner have a right to full reparation for the human rights violations they suffered.

Both entities have introduced provisions into their labour legislation to address the problem of the large number of workers who had been either dismissed or put on waiting lists during the war (many, if not most, on account of their ethnicity). These have, however, proved wholly inadequate to deal with the volume of the complaints and have failed to provide an effective remedy to those affected by a discriminatory dismissal or transfer to waiting list.

Article 143 of the 1999 FBiH Law on Labour provides that workers on waiting lists are entitled to compensation "in the amount specified by the employer" and, in those cases where they are not requested to resume work, to a severance pay which is calculated on the basis of the average monthly salary in the FBiH. For the purpose of article 143, an employee who was employed on 31 December 1991 and who, within three months from the entering into force of the Law on Labour, addressed in writing or directly the employer for the purpose of establishing his/her legal and working status, and had not accepted employment from another employer during this period, was also considered an employee on the waiting list. Article 143 also provides that in those cases where the employment of a waitlisted worker is terminated, and he/she is still unemployed, for one year the employer cannot employ another employee with the same qualifications or educational background of the dismissed worker.

Amendments to the FBiH Law on Labour entered into force on 7 September 2000, with the addition of Articles 143[a], 143[b] and 143[c], which established and regulated the functioning of the federal and cantonal commissions for the implementation of Article 143. The amendments also limited the maximum amount of severance pay, which depends on the total length of service, and in any case, cannot exceed a sum equal to three times the average monthly salary in the FBiH.(115) In accordance with these provisions, employees who believed that their rights arising from Article 143 were violated could lodge a claim with the Cantonal Commission for the Implementation of Article 143 of the Law on Labour, established within the relevant cantonal ministry. A Federal Commission for the Implementation of Article 143 was also established, tasked with deciding on complaints against procedural decisions of the cantonal commissions. Decisions of the Cantonal and Federal Commissions are "final and subject to the court’s review in accordance with the law" Article 143[c]. The amendments established a new deadline (6 December 2000) by which claims had to be submitted.

Many thousands of workers(116) used the new provisions to file a complaint with the cantonal commissions. However, in many cantons the Article 143 commissions did not operate for a long time and those cantonal commissions which were established were the subject of hundreds of complaints to the FBiH Ombudsman for Human Rights.(117) The FBiH Ombudsman reported that, by early 2001 only some 2,700 complaints had been examined. A 2004 Council of Europe (CoE) report on Roma access to employment in BiH notes that:

"at the end of 2002, two years after the law had defined rights on this ground, former workers are just as far from the exercise of rights guaranteed under Article 143. […] In the area of Herzegovina-Neretva Canton, the Cantonal Commission for the Implementation of Article 143 of the Law on Labour has not operated since November 2001 and in the area of Central Bosnia Canton – since April 2001. […] Bearing in mind that in the Central Bosnia Canton only, around 11,000 complaints were lodged by workers related to the exercise of rights ensuing from Article 143, it is evident that bodies of governance – by failing to create requirements for the work of commissions, which serve as a mechanism for the exercise of workers' rights – clearly show little respect towards the rights of workers guaranteed under this law. But even in cantons in which these commissions operate, the total number of decided complaints and complaints decided in favour of workers is insignificant. For example, in Herzegovina-Neretva Canton, out of 3,647 reported complaints for regulating labour status, only 230 complaints were decided with the plaintiff's complaints being accepted, but in the majority of these cases employers then lodged complaints with the Federation Commission and these have not been decided yet. According to data on the work of the Cantonal Commission in Sarajevo, out of 14,000 complaints that this commission is responsible for, 11,000 complaints were decided by December 1, 2002, of which 20% were decided in favour of plaintiffs and 80% of the complaints were rejected".(118) In July 2004 the BiH Human Rights Ombudsman issued a special report on the implementation of Article 143 of the FBiH Law on Labour and Article 152 of the RS Law on Labour (see below). As of March 2004, only approximately 10,700 claims had been examined by cantonal commissions while the Federal Commission had received 3,700 complaints, of which some 2,400 had been examined. The BiH Ombudsman found that the length of proceedings before such commissions constituted a violation of Articles 6 and 13 of the ECHR, as well as of the BiH Constitution.(119) In June 2005 the FBiH Ministry for Labour and Social Policy informed Amnesty International that commissions in all cantons, with the exception of the Zapadnohercegovački Canton, had considered 29,042 claims, out of a total of 60,456. The Ministry also informed Amnesty International that information on the activities of the Article 143 commission in the Zapadnohercegovački Canton was not available, as the commission had not been working "for a long time".(120)

Leaving aside the inadequacies of the commissions, major problems lay in the legislative framework itself. The international NGO American Refugee Committee (ARC), whose office in Mostar had offered legal assistance to hundreds of persons who had lost their employment on grounds of their ethnicity, noted that the FBiH Law on Labour, by excluding from severance pay and compensation anyone who had accepted any form of employment, effectively discriminates against members of minority groups.(121) Such circumstances applied overwhelmingly to members of minority ethnic groups who had to leave their pre-war homes (and workplaces) as a result of persecution or threats, and who had been forced to find other work while displaced in order to survive.

Moreover, the ARC considered that, even in processing workers’ applications under Article 143, companies continued to discriminate against members of certain ethnic groups. The Aluminij factory in Mostar, for instance, required from non-Croat workers that they provide exhaustive and costly documentation on their war-time employment, whereas ethnic Croat employees, hired during or at the end of the war, did not have to present any records of their employment during the war period.(122)

Provisions on compensation to unfairly dismissed workers, which entered into force in the RS in December 2000, present similar problems. Article 152 of the RS Law on Labour provides that "[a] worker who was employed on 31 December 1991 by an employer situated on the present territory of the Republika Srpska, and who considers that his employment status was terminated illegally in the period from that date until the day this law enters into force, has the right to apply for severance pay, within three months of the law entering into force". The RS Law on Labour also provides for the establishment of a commission tasked with processing applications for compensation (Article 158).(123)

In November 2000, before the new Law on Labour entered into force, the OHR amended the provisions on severance pay extending this right also to workers on waiting lists "in as far as their employer, within a period of three months from the day this law enters into force, does not call them back to work".(124) Moreover, the OHR decision reduced the severance payment(125) to a maximum of four times the average monthly salary paid in the RS over the three months preceding the month when the employment contract was terminated.(126)

The implementation of provisions on severance pay in the RS has suffered even greater delays than in the FBiH. Although the RS Ministry for Labour and Veterans received "between 60,000 and 80,000 requests for compensation"(127) a Commission for the Implementation of Article 152 was set up only in November 2003.(128) Since November 2003, the Commission has reportedly been working intermittently, partly because activities related to the Commission are not the main occupation of its members. The ECRI noted in a recent report on BiH(129) that "in spite of the many thousands of claims filed (80 000 in Republika Srpska alone), only a few cases appear to have been solved to date".(130) Moreover, the Office of the RS Human Rights Ombudsman warned in its annual report for 2003 that, even in those cases where the RS Commission for the Implementation of Article 152 issues a decision on severance pay, there exists the risk that the amount will not be paid, simply because of lack of financial resources.(131) According to the latest information available to Amnesty International, as of June 2004, the RS Commission had considered 1,562 requests for severance pay, out of which 388 were approved. The RS authorities have not replied to Amnesty International’s requests for updated information on the functioning of the RS Commission for the Implementation of Article 152 of the Law on Labour and on the number of claims it has considered.

Apart from the inadequacy of functioning mechanisms for the implementation of Article 152, the provision itself explicitly refers to workers formerly employed by an employer "situated on the present territory of the Republika Srpska". However, before the war, many companies, which operated factories in the RS, were legally registered in Sarajevo or elsewhere in the SFRY. It is not yet clear whether this clause will be interpreted restrictively by the RS Commission for the Implementation of Article 152 of the Law on Labour, precluding compensation to workers of factories and other establishments located in the RS, but which were not legally registered there.

Assessing entity provisions on severance pay, compensation and discriminatory dismissals and their implementation
Some of the problems in the existing legal framework on compensation and severance pay for unfairly dismissed workers have already been mentioned. Among the most significant of them is that Article 143 of FBiH Law on Labour appears to limit the right to a remedy for war-time dismissal or transfer to waiting list to those who have not entered any form of employment. As noted above, such provision disproportionately affects members of minority communities and excludes from compensation a significant number of workers who were affected by discriminatory dismissals.

Leaving aside the issue of which categories of workers are entitled to compensation, both Article 143 and Article 152 fail to provide redress to those affected by discriminatory dismissals or transfers to waiting lists, including those who under current provisions have the right to file a claim for compensation. In 2001 the BiH Constitutional Court reviewed the constitutionality of Article 152 of the RS Law on Labour, following a request of a member of the BiH Presidency. The applicant alleged that "the law provides neither for a right to continue their [of unfairly dismissed workers] former employment nor for any recognition of employment years or other forms of social insurance, nor does it penalize ‘all other consequences of ethnic cleansing’, and that it thereby legalizes the discrimination on ethnic grounds".(132) In line with the position taken by the international community (and in particular the OHR), the Constitutional Court found that Article 152 is in conformity with the BiH Constitution. In relation in particular to the amounts granted as severance pay, the Constitutional Court held that:

However, Amnesty International considers that the amounts payable as compensation for unfair dismissals, which in most cases does not exceed the equivalent of a few hundred Euros both in the RS and in the FBiH, appear to be completely inadequate to constitute fair compensation to the workers.

Discriminatory dismissals, particularly those which formed part of an orchestrated campaign of "ethnic cleansing",(134) had not only direct negative economic consequences for workers and their dependants, but also a negative impact on a number of other economic and social rights. Many dismissed workers effectively lost their right to a pension, or saw their pension significantly reduced, as a consequence of their dismissal and their subsequent long-term unemployment.(135) In addition, in the SFRY’s "socialist" system, companies often provided health care and other forms of social welfare to their workers and their families. For instance, special outpatient health care clinics were financed, equipped and managed by employers. These clinics were the major source of primary care for employees of Yugoslavia’s large enterprises.(136)

Amnesty International understands the need to create legal certainty for those companies that ceased or reduced their activities during the war and that the reinstatement of unfairly dismissed workers may not be possible in all cases.(137) However, the organization is concerned that the RS, as well as the FBiH labour law fail to provide other forms of reparation for the violations of the rights of unfairly dismissed workers and their dependants arising from discriminatory employment practices.

As already noted, Amnesty International is also concerned that the mechanisms in place to ensure that existing provisions on discriminatory dismissals are fully implemented appear to be completely inadequate. As noted above, the RS Commission for the Implementation of Article 152 of the Law on Labour has only recently become operational. Moreover, its activities are hampered and delayed by the lack of material and other resources necessary to perform its tasks effectively.(138) As a result, only a tiny fraction of the complaints has been examined by the Commission. In this respect, the situation in the FBiH is only slightly better. After various delays cantonal commissions for the implementation of Article 143 of the FBiH Law on Labour have begun their activities in most cantons. However, also in the FBiH such commissions have inadequate resources(139) and as a result are operating at an extremely slow pace and have only considered a limited number of complaints.

Moreover, Amnesty International is concerned at the apparent lack of effective mechanisms to enforce decisions of the FBiH and RS commissions.(140) It has been reported to the organization that often such decisions are simply not enforced, including because companies have de facto ceased their activities or are otherwise insolvent.

The situation in the FBiH is made even more difficult given that the FBiH Supreme Court has held that decisions of the commissions are not directly enforceable and has advised individuals, whose right to compensation has been recognized by the commissions, to go to court to enforce such decisions, in those cases where the employment company still exists and is solvent.(141) However, given the state of the BiH judiciary, proceedings before a court are lengthy and, in fact, do not give any assurance of enforcement.(142)

In general, the implementation of the commissions’ decision has been hampered by the difficult economic situation in BiH, affecting liable companies. The BiH Ombudsman noted that:

In this respect, it is imperative that the FBiH and RS ensure that sufficient resources are allocated to funds established in order to pay compensation, and to finance other measures of reparation, to unfairly dismissed workers in formerly state-owned enterprises. Reparations should cover all human rights violations suffered by victims of discrimination and, where appropriate, their dependants. At present, allocated financial resources are reportedly largely insufficient to pay even the limited amounts set out in the entities’ labour laws to all workers who, under current provisions, have legitimately claimed compensation for their unfair dismissal.

4. Case studies

a) The Aluminij factory in Mostar
"During the war we wanted to keep the factory going, even though it was being shelled. But then they [Aluminij’s management] fired us, because we were Serbs or Muslims. I don’t say I am a dismissed worker; I say I am a Serb worker, and that’s why I was asked not to return to work" (Amnesty International interview with Nebojša Spajić, a former employee of the Aluminij factory).

One of BiH’s most profitable enterprises, the aluminium manufacturing plant Aluminij, lies to the south-west of Mostar. Before the war Mostar had a mixed population of about 120,000 of which Bosniaks and Bosnian Croats made up roughly 40 per cent each, with Bosnian Serbs and others, including Jews, Roma and people of mixed heritage, comprising the remaining 20 per cent.(144)

In the initial phase of the war, the conflict in Mostar saw hostilities between the Bosnian Croat and Bosnian Government forces, jointly fighting against the Yugoslav People’s Army (Jugoslovenska narodna armija, JNA). In 1993 conflict between Bosnian Government and Bosnian Croat forces erupted, leaving the city divided along ethnic lines (see box).

While progress has been achieved in Mostar’s legal and political reunification, economic and social circumstances prevailing in the city, including continuing discrimination and segregation, have continued to negatively affect the reunification process. In fact, in the post-war years, some of the main issues of dispute between the former warring sides in the city have concerned the lack of equality in the realization of economic, social and cultural rights including the right to education, to health including access to healthcare, social security and the right to work.

The conflict in Mostar and its aftermath
After war broke out in April 1992, Mostar was besieged by the Yugoslav People’s Army JNA, which was repelled by the Army of Bosnia and Herzegovina (Armija Bosne i Hercegovine, ABiH) and the HVO, the Bosnian Croat armed forces. However, tensions between the ABiH and the Bosnian Croat political and military leadership, which increasingly claimed the right to territorial control over large parts of Herzegovina, escalated in April 1993 into open fighting. On the night of 9-10 May 1993, HVO forces captured the ABiH headquarters in western Mostar and established control over that part of the city. The majority of the non-Croat population fled into East Mostar. In August 1993, Bosnian Croat leader Mate Boban officially declared the "Croatian Republic of Herceg-Bosna" (Hrvatska republika Herceg-Bosne), establishing a de facto military and political administration which governed the Croat-controlled areas of Herzegovina. The self-proclaimed Republic of Herceg-Bosna was never recognized by the international community.

The conflict was accompanied by grave human rights violations and serious violations of international humanitarian law, in particular the massive internment of mainly Bosniak civilians in makeshift detention centres where they were subjected to executions, "disappearances", torture including rape, starvation and forced labour. Civilians were also victims of forcible transfers aimed at creating "ethnically clean" territories. While the HVO was responsible for the majority of these violations of international human rights law and international humanitarian law, against the Bosniak and Bosnian Serb populations, there were also reports of violations committed by the ABiH against Bosnian Croats in areas under their control. As elsewhere in BiH, impunity for the majority of these serious crimes under international law still prevails.
In the Dayton Agreement of 1995, Mostar became part of the FBiH. Since then the international community has attempted to unify the city’s administration, battling deliberate obstructionism which has persistently divided the city along ethnic lines and undermined attempts at integration and reconciliation. In September 2003 the OHR appointed a new commission under international leadership which at the end of 2003 issued its recommendations and proposed a new statute for the city of Mostar. In January 2004 the OHR enacted the Statute of the City of Mostar, merging Mostar’s six separate Bosniak and Bosnian Croat municipalities into a single city administration.

Aluminij during and after the war
Before the war Aluminij was one of the largest state-owned companies in the SFRY. The company produces high-grade aluminium, which is in considerable demand from the automobile and other industries. Today, Aluminij is one of the BiH’s most important companies, with over 20,000 people reportedly dependent on the plant directly and indirectly.

The war affected the Aluminij factory in several ways. Power supply became erratic and access to raw materials became more difficult as supply lines were disrupted. Transport links were also affected, preventing workers from reporting to work regularly. Production inevitably declined. On 23 April 1992, the factory reportedly came under heavy shelling by the JNA and the electrical substation was blown up. An inspection report, drawn up by former members of Aluminij’s pre-war managerial board, stated that all activities of the plant stopped the next day, on 24 April 1992.(145) The report, which was issued in November 1992, noted that the Bosnian Serb Army and Serb paramilitaries had subsequently looted the factory and destroyed equipment and buildings, despite the workers’ efforts to protect and secure the facilities. While the damage was considerable, the report concluded that vital parts of the factory’s components had been preserved and that it was possible to start up the plant again.

On the withdrawal of the JNA, the HVO took over control of the area on which the plant was situated and in June 1992 it issued a decision to appoint a new board of managers, consisting solely of Bosnian Croats. These included Mijo Brajković as the company’s general director, who has remained in this position after the war, and three other Bosnian Croats. All had been on the board previously. During the ensuing Croat-Bosniak conflict the company ceased all production. There have been reports that during the war Bosniak prisoners, detained at the Heliodrom detention camp, were forced to clean the anode plant(146) for a period of six months.(147) Some of these prisoners, it is alleged, were former workers of Aluminij.(148)

After having been damaged during the war,(149) the Aluminij plant became operational again in stages. In mid-1996, the management decided to get the anode factory working again. The company’s website credits the "selfless dedication" of the workers and of the management which allowed for the first electrolytic cell to be made operational again on 14 August 1997. Company officials told Amnesty International they spent over 5 million US Dollars to get the plant working again. Aluminij’s executives claim they managed to make the plant operational single-handedly, without any help from the FBiH, BiH, or from Herceg-Bosna. Today, the factory employs approximately 970 workers, less than a third of its pre-war workforce.

Aluminij lists as its business partners, including companies that buy its products and companies with which it has technical collaborative links, major international corporations, such as Conoco of the US, DaimlerChrysler and Debis of Germany and the US, Norske Hydro of Norway, FIAT of Italy, Glencore of Switzerland, and TLM Šibenik of Croatia.

Discriminatory conversion of unpaid salaries into shares
While Aluminij Mostar is widely regarded as one of the country’s most profitable and prominent companies, substantial issues remain to be addressed regarding its current ownership structure. The company, which before the war was entirely state-owned, has since 1997 seen drastic changes in the ownership of its capital.

A key part of the transformation of Aluminij, in September 1997, into a company with limited liability was the decision by the executive board of the company to convert the value of unpaid wages (accrued during the war by the company’s workers) into shares in the company, apparently without consultation with or the consent of the workers concerned. According to the company’s management, unpaid wages totalled approximately 97 million German Marks(150) but, crucially, not every employee was awarded the same amount of unpaid wages. Most of Bosnian Serb employees did not receive any sum or shares as compensation for unpaid wages. Bosniaks received shares corresponding to the minimum salary for the nine-month period between 1 August 1992 and 1 May 1993, when the conflict between Bosnian Croats and Bosniaks started in Mostar.(151) Bosnian Croat workers, on the other hand, received shares corresponding to their full salary for the entire period in which the factory was not working (53 months). Thus, the partial privatisation of the company was carried out in a non-transparent way, and appears to have had discriminatory consequences affecting non-Croat workers.

According to a report, drawn up by a team of legal experts, commissioned by OHR in May 2000 to review the legality of the decisions leading to the changes in the company’s ownership structure, many of the decisions and actions of Aluminij’s management in this respect had been questionable, albeit not in "clear breach of the law". However, the team of experts, composed of two representatives of the FBiH Agency for Privatization, two Mostar civil lawyers, and headed by a Dutch legal expert, could not reach a common position on recommendations to be issued. Therefore, the final report contained a number of recommendations issued only by the international advisor who inter alia proposed to award every (former) worker, regardless of his/her ethnicity, shares amounting to 53 months of wages.

These conclusions and recommendations were presented to the FBiH government and to the Aluminij management. They were rejected by the FBiH authorities, including on the grounds that the state had been disadvantaged during the controversial privatization and that the proposed settlement did not constitute a just remedy. Reportedly the management of Aluminij broadly accepted the conclusions, and has in fact since made some proposed settlements to employees which appear to be somewhat similar to the recommendations of the international advisor.

The ownership structure of Aluminij has continued to remain a subject of controversy and the FBiH government has for a long time insisted that the issue be resolved through international arbitration. In May 2005 representatives of the FBiH government and of the company have reached an agreement in principle on the ownership structure of the company, which foresees that the state and the workers each retain a share of 44 per cent of the company and TLM the remaining 12 per cent. Although statements by FBiH public officials have indicated that such agreement on the ownership structure will also encompass specific measures aimed at remedying past discriminatory provisions(152) against non-Croat workers, it is not yet clear how and to what extent they will fully address past discrimination. Moreover, the failure in November 2005 by the FBiH House of Representatives to adopt amendments to the Law on the Privatization of Companies, may mean that the agreement between FBiH government and Aluminij will not be implemented.

Discrimination against non-Croat workers
Companies, including international companies, have operated in divided communities in the past. In the most famous example, several US corporations which operated in apartheid-era South Africa implemented the Sullivan Principles,(153) under which they worked towards eliminating segregation and discrimination at the workplace and promoting "affirmative action". Some companies cited their adherence to the Sullivan Principles as the reason they felt they could continue to operate in South Africa, even though anti-apartheid groups were campaigning for divestment from South Africa. In their limited way, the Sullivan Principles showed that companies could operate in difficult circumstances and promote non-discrimination even in a state that practices discrimination.

Ethnic composition of Aluminij’s workforce before and after the war

	1992	2003
Bosniaks	1119 (33%)	25 (3%)
Bosnian Croats	1519 (44%)	827 (93%)
Bosnian Serbs	777 (23%)	37 (4%)

Source: Aluminij

In the divided city of Mostar, Aluminij has pursued a policy of ethnic discrimination during the war, the effects of which continue to be felt, and elements of which continue to be practiced. From being a company with a significant number of employees from each of the three major communities of BiH (Bosniaks, Bosnian Croats and Bosnian Serbs) Aluminij has become a company with an overwhelmingly Croat workforce.

Aluminij’s war-time management placed a significant number of workers on a waiting list and dismissed employees who did not report to work for more than five days.(154) As already explained, the circumstances of the war often made it impossible for workers belonging to the "other" ethnic group to report for work and this meant that such decisions to terminate employment had a discriminatory effect, and resulted in a more ethnically homogeneous workforce. Aluminij’s executives also claimed that the FBiH Parliament declared the end of war in December 1996 and that this meant that companies had to switch to peacetime business regulations. From that day, the company’s management says, Aluminij could no longer accept absences related to the war and had to dismiss workers who did not report to work. In reality, workers did not show up at the factory in late 1996 because many of them, particularly those from ethnic minorities, were either internally displaced or refugees abroad. It took time for them to return, and then try to re-establish their old lives. Moreover, from early 1996 to 1998, most non-Croat workers who reported to the factory were told that they were not welcome back. Many reported having been physically barred from entering.(155) They were racially abused by the security guards and confronted with racist graffiti saying "balije (a derogative term for Bosniaks) are not allowed here" or "access forbidden to Serbs and dogs".(156)

Aluminij’s management acknowledge that the ethnic composition of the company’s workforce has radically changed, but defends itself by saying that Mostar’s demographic profile has also changed since the war. This is undeniably so(157) and, as already noted, one of the central aims of the warring parties was to secure territory and power and to share resources only with members of their own ethnic group, by "cleansing" regions of people of other ethnicities. However, the consequences of "ethnic cleansing" cannot be effectively reversed as long as members of the minority ethnic groups continue to be subject to discrimination, including in access to employment.(158)

In 1999 the Governing Body of the ILO issued a report,(159) following an application by the Union of Autonomous Trade Unions of Bosnia and Herzegovina (Savez samostalnih sindikata Bosne i Hercegovine, SSSBiH) and the Union of Metalworkers, alleging that the of dismissal of Bosniak and Bosnian Serb employees of the Mostar-based factories, Aluminij and Soko was solely motivated by their ethnicity. The ILO instructed the authorities inter alia to ensure that workers dismissed from the Aluminij and Soko factories on the grounds of their ethnicity receive adequate compensation for the damage that they have sustained; receive payment of any wage arrears and any other benefits to which they would be entitled if they had not been dismissed; and are as far as possible reinstated in their posts without losing length of service entitlements.

In 2001 the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) concluded that the government had so far not implemented the ILO recommendations.(160) The CEACR observed that, though new sections had been added to the FBiH Labour Law in late 1999, providing compensation to workers dismissed during the war, it was unclear whether and how the Aluminij and Soko managements intended to use this legislation in order to implement the ILO decision.(161)

In 2003 the CEACR requested that the BiH authorities provide detailed information on dismissed workers of the Aluminij and Soko factories, including on claims brought by affected employees before the cantonal and federal commissions for the implementation of Article 143 of the FBiH Law on Labour.(162) In 2004 and 2005 the CEACR, noting that the BiH authorities had failed to reply to its previous observation, reiterated the same request.(163)

In August 2003 Amnesty International interviewed several former Aluminij workers who were dismissed in a discriminatory way. Mujo Hodžić, a Bosniak, 56, had worked at Aluminij since 1980 and was actively employed at the factory until the early months of 1993, before the conflict between HVO and ABiH started. After the war he applied in writing to get his job back, but he never received a reply. In 1998, he set up a local trade union affiliated with the BiH Trade Union of Metal Workers in an attempt to find a solution for fellow workers who had also been summarily dismissed on account of their ethnicity. His efforts included travel to the RS to locate Bosnian Serb former colleagues so that they would be represented as well. Mujo Hodžić told Amnesty International that most unfairly dismissed workers were at no point formally informed that their employment had been terminated.

Muhamed Avdović, a 55-year-old Bosniak who had been with the company since 1974, unsuccessfully tried to get back his job in the maintenance department in mid-1996. At the gates of the factory, a guard told him that he could not enter because he was a balija. He managed to get inside to the human resources department to collect his work booklet.(164) After several attempts to get his booklet, he was told by a clerk that he could get it back but that then his case would be closed, and he would never be able to return to the factory. He told Amnesty International: "So I refused to take it. Other people who have asked for their booklets are told they have been lost. But without a work booklet you can’t get a job".(165)

Nebojša Spajić, Bosnian Serb, 38, who had worked at the plant’s fire department from 1988 to 1992 told Amnesty International he had worked double shifts, totalling 15-16 hours a day, together with about 150 colleagues, while the plant was being shelled. He told Amnesty International: "During the war we wanted to keep the factory going, even though it was being shelled. But then they fired us, because we were Serbs or Muslims. I don’t say I am a dismissed worker; I say I am a Serb worker, and that’s why I was asked not to return to work". Nebojša Spajić says he has not worked for 11 years, after he was not allowed to return to his post at Aluminij.

According to Aluminij, some 1,600 workers applied to be reinstated in their former jobs under Article 143 of the FBiH Law on Labour.(166) None of them was allowed to return to work. The company claims that it has agreed to pay severance pay to 503 workers, of whom 397 have actually accepted a small payment(167) and the remaining have refused to be "bought out" and to settle their claim through the payment of severance.

The company has shown some willingness to meet its formal obligations under Article 143 of the FBiH Law on Labour. However, Aluminij has relied on the exclusion from Article 143 of workers who had taken up any form of employment elsewhere to deny people in such a position an effective remedy. In August 2003 Amnesty International was informed by the head of human resources at the plant that Aluminij had a list of 800 former workers, all of whom had taken up another job. "We have investigated each case, every complaint, and we will show you records. They have either taken other jobs, some have retired, some are dead. Others have falsified records. If they accept another job, they cannot be rehired. […] We are only implementing the law. We have records of every employee, every name and number. No other firm in Bosnia and Herzegovina has such good records". The company’s human resources department showed Amnesty International delegates their personnel filing system with colour-coded files, denoting the ethnic origin of the employees.

Continuing discrimination in employment and remedies
Even in more recent years, despite having been included in the OSCE Fair Employment Project, Aluminij has not made adequate efforts to have a more ethnically balanced workforce. Aluminij executives told Amnesty International in 2003 that the company does not have an anti-discrimination policy. Asked to explain the continuing imbalance in its ethnic composition, company executives explained that unemployment affects all ethnic communities and that all candidates for a post are judged merely on the basis of their skills and qualifications. Defending the company’s employment policies, Aluminij’s executives told Amnesty International:

The company claims that when vacancies were advertised in the local media, only Bosnian Croat workers applied. However, Amnesty International has received reports that new posts have been advertised using only the Croatian variant of the local language and only in media targeted specifically at a Bosnian Croat audience. Moreover, the reports of harassment and discrimination of non-Croat workers in the company, and the deep ethnic divisions in Mostar in general have not created a situation conducive to the employment of minority workers at Aluminij, in the absence of a clear and unequivocal commitment by the company to encourage qualified non-Croat workers to apply for new positions, to ensure that such workers will have equal opportunity of career progression and to ensure that harassment and discrimination will not be tolerated. Reportedly, the director of Aluminij Mostar has instead gone on record declaring that the company was Croat and would remain so.(169)

Ongoing discrimination by large employers such as Aluminij, in the context of a stagnant economy, continues to be a serious obstacle to minority returns. Former Aluminij workers who had been unfairly dismissed on the grounds of their ethnicity and are refused full reparation are victims of continuing human rights violations.

Failure to realize the right to an effective remedy for discriminatory violations of the right to work is partly the result of the inadequacy of provisions included in the FBiH Law on Labour and of the fact that existing provisions are not fully implemented. Moreover, in the case of Aluminij, as in the case of many other companies and public institutions in the FBiH where discriminatory employment practices are still applied or tolerated, the FBiH and BiH have failed to ensure that FBiH labour code provisions prohibiting discrimination in access to employment are fully implemented.

Amnesty International also notes with concern that the authorities have failed to implement the ILO’s recommendations in upholding the representation made by BiH trade unions with respect to discrimination in the Aluminij and Soko companies in Mostar. The BiH authorities have not provided ILO with "detailed information", including on the number of dismissed workers, their ethnic breakdown, the number of dismissed workers who have received severance pay and on proceedings for claims under Article 143 of the FBiH Law on Labour.(170)

Although agencies of the international community have generally played a positive role in promoting fair employment practices in BiH, including at Aluminij, pressure exerted to ensure the elimination of discrimination and the resolution of claims relating to unfair dismissals has been insufficient and has only produced limited results.

b) The Ljubija mines near Prijedor
"This was not a war; this was destruction of Muslims. This is not like any other dead mining town, but because of discrimination it has been killed" (Amnesty International interview with Beisa Hadžibajramović, a former employee of the Ljubija mines).

The Ljubija iron ore mines are located at three sites in Ljubija, Tomašica and Omarska, in the vicinity of Prijedor, a town in the RS to the northwest of Banja Luka. The mines were not significantly damaged by the war and appear to have considerable economic potential, although their post-war activities have been negatively affected by the disruption of markets in the former Yugoslavia.(171)

In 2004 the international corporation LNM Holdings(172) and the Ljubija Iron Ore Mines (RŽR Ljubija, Rudnici željezne rude Ljubija), entirely owned by the RS, signed a joint-venture agreement to establish a new company, the New Ljubija Mines. Fifty-one per cent of the new company is owned by LNM, while the RS retains the remaining 49 per cent. As part of the agreement, LNM has committed itself to make significant investments to restart and develop the mines which, after years of inactivity, resumed their operations in late 2004. By all economic indicators, the RS economy is faring worse than the FBiH’s, and thriving iron mines could promote much needed economic growth in the RS.

War crimes and crimes against humanity in the Prijedor area
For years the Ljubija mines have been largely inactive not only because of political uncertainties surrounding doing business in the Balkans, the institutional weaknesses of the BiH economy, structural impediments, or global economic forces. The history of Prijedor and the role of the mines during the war have had a significant impact on the mines’ operations in recent years. The area and indeed the premises of the mines were the site of some of the most horrific crimes, including torture and mass murder, committed during the war.

Prijedor and the surrounding area were of strategic importance to the Serbs during the war, as part of a corridor that would link Serbs in Croatia’s Krajina region through BiH to Serbia. On 7 January 1992 the Bosnian Serb members of the Prijedor Municipal Assembly and the presidents of the local committees of the Serbian Democratic Party (Srpska Demokratska Stranka, SDS) proclaimed a parallel Assembly of the Serbian People of the Municipality of Prijedor.(173) Ten days later, the Assembly of the Serbian People of the Municipality of Prijedor unanimously voted to join "the Serbian territories of the Municipality of Prijedor to the Autonomous Region of Bosnian Krajina".(174)

During the night of 29-30 April 1992, the SDS led what was described by the Tribunal as an illegal coup d’état in Prijedor that had been planned and coordinated for months and had as its final goal the creation of an "ethnically pure" Bosnian Serb municipality.(175) On 20 May 1992, the Municipal Assembly was replaced by the Crisis Staff of Prijedor municipality, later known as the War Presidency, chaired by Milomir Stakić.(176) The Crisis Staff included key people from local enterprises, including the Ljubija mines.(177) As Bosnian Serb forces took over Prijedor, they launched a brutal campaign of "ethnic cleansing".(178) This, as already noted, often began with the dismissal of non-Serb employees, starting from those in key positions in the local administration and in large enterprises. Under a decision of the local Bosnian Serb authorities, armed attacks were launched against the non-Serb civilian population in the municipality, including against predominantly Bosniak villages and towns. Many were killed in attacks of the Bosnian Serb Army (Vojska Republike Srpske, VRS), while thousands of others were forced to leave the Prijedor area. Bosnian Croat and Bosniak religious and cultural buildings were destroyed. The Tribunal found that in 1992 at least 1,500 non-combatants were unlawfully killed by Bosnian Serb forces.(179) Of these the Tribunal was able to identify by name 486 victims.

The municipality of Sanski Most, which borders Banja Luka to the west and Prijedor to the north, experienced similar attacks and "ethnic cleansing" campaigns. In early 1992, with support from the VRS Sixth Sanska Light Infantry Brigade, Sanski Most’s SDS took control of the city and its surrounding villages, bombarding the homes of non-Serbs and forcibly removing, detaining, and murdering Bosniak and Bosnian Croat civilians.(180) Among the villages attacked by VRS forces was Stari Majdan, where many workers of the Ljubija mine lived.

Thousands of Bosniaks and Bosnian Croats were taken to detention camps in Omarska, which is part of the Ljubija mines complex, as well as to Keraterm and Trnopolje. Some were also detained in "improvised detention facilities made in the Ljubija iron ore mine" including in the main separator in the central mining area, which was allegedly used as a temporary place of detention.(181) There are reports that some members of the war-time management of the Ljubija mines were implicated in crimes committed during the "ethnic cleansing" campaign.(182)

While some of the executions were carried out in the Ljubija site of the mines,(183) mass killings usually took place in the bigger detention facilities run by the Bosnian Serbs. In Omarska and Keraterm, interrogations, torture and mass killings were carried out. In July 1992, on one single night, 128 men from the Brdo area of Prijedor were massacred in the Keraterm camp (the so-called "room 3 massacre").(184) The Tribunal found that "hundreds of detainees were killed or disappeared in the Omarska camp between the end of May and the end of August when the camp was finally closed".(185) At the end of July, more than 100 people were killed in the Omarska camp, including people from the village of Hambarine, who were initially detained in the so-called "white house", a building which is part of the Ljubija mines complex.(186) On 5 August at least 120 persons detained in the Omarska camp, were taken away in two buses and subsequently killed.(187) In Trnopolje conditions were not as appalling as in Omarska and Keraterm, but killings and torture including rape took place there as well.(188)

Those detained in Omarska and in other detention camps run by the Bosnian Serb authorities included Bosniak and Bosnian Croat intellectual, political and professional leaders. The aim appeared to be to strike a blow at the economic strength of the Bosniak and Bosnian Croat communities and to strip the non-Serb population of its resources. This happened through the taking over of banks and local businesses, and also simply through the looting of houses and the stealing of money and jewellery from men and women as they were forced to leave the area on convoys organized by the Bosnian Serbs.(189) The international human rights NGO HRW notes that:

HRW quotes the Final Report of the UN Commission of Experts which stated that those detained in Omarska were almost the entire non-Serb elite, including political and administrative leaders, religious leaders, academics and intellectuals, as well as business leaders. The report notes:

A former shift leader at the Ljubija mines with 28 years’ service told Amnesty International: "When the war began, the non-Serb intelligentsia was killed, including doctors, senior managers, engineers. The director of our mine, a professional engineer, Ibrahim Pavlović, is still missing. These were our pre-war colleagues".(191)

Mass graves and the Ljubija mines
The first reports on the presence of mass burial sites in the Ljubija mines complex appeared already before the end of the hostilities. The UN Commission of Experts, in the annex on mass graves to its 1994 final report on violations of international humanitarian law committed in the territory of the former Yugoslavia, reported that the mines in Omarska, Tomašica and Ljubija contained a great number of bodies of victims of the fighting in the Prijedor area, as well as of those who were killed during detention. The report notes:

The document mentions reports of a specific episode, the massacre carried out in July 1992 in room 3 of the Keraterm camp.(193) The Commission of Experts’ report states that the mass killing "resulted in a huge mass burial, most likely at one of the Omarska/Tomašica mine sites".(194) The document further mentions other reports that non-Serb victims of killings were buried in various sites at the Ljubija mines. The existence of mass graves at the Ljubija mine was later reported in The New York Times, in January 1996.(195) The New York Times reported that the mining complex was believed by residents there and Western officials to have been the central collection point and hiding place for thousands of corpses of victims of the Bosnian Serbs’ campaign of "ethnic cleansing" in north-western BiH.

Subsequent reports confirmed the existence of mass graves in and near the Ljubija mines complex. In 2001, 373 bodies were exhumed from the mass grave of Jakarina kosa in the Ljubija mine(196) and other smaller mass graves have been exhumed in the area surrounding the mining complex. Between August and November 2004 the remains of 456 people were exhumed from one of the largest mass graves ever discovered in BiH in Kevljani, near the Ljubija mines. The bodies were believed to be of former Bosniak inmates killed in the Omarska and Keraterm detention camps. Allegedly, this was a secondary mass grave which was dug well after the killings took place and where mortal remains were transferred from a number of other burial sites. Esad Bajramović, a member of the FBiH Commission for Missing Persons, told the BiH daily Nezavisne Novine that such graves could have been excavated only using equipment such as the mining machinery in use at the Ljubija mines.(197) Exhumations in the area continue and, reportedly, in May 2005 a new mass grave was found in the vicinities of the Ljubija mine. Amor Mašović, the head of the FBiH Commission for Missing Persons, is reported to have stated that "there is no doubt whatsoever that there are bodies as yet unfound within the mine of Omarska and its vicinity […] We are not talking about dozens of bodies here, we are talking about hundreds".(198) Estimates suggest that the true number of people still buried in the area of operations of the New Ljubija Mines may be as high as 1,700.(199)

Former workers at the mine told Amnesty International that after non-Serb workers had been dismissed in 1992, the mine and its equipment were turned to the purpose of committing and covering up crimes against the non-Serb population.(200) There are credible reports that some of those who perished or were buried in the Ljubija mines were former employees of the mine.(201) Former workers testified to Amnesty International that they knew of other former workers who were called to help bury the bodies of murdered non-Serbs, and that they recognized some of the victims as their former colleagues.(202) Members of the local population told Amnesty International that most of the bodies were transferred to secondary mass graves in 1994, in a massive operation that lasted 16 days. In 2003 a former worker took Amnesty International delegates to a pit at the Ljubija mine. He said dead bodies were brought in trucks and tossed in the pit and then covered in sand by Serb soldiers.

LNM/Mittal Steel-appointed management of the mines have reportedly stated that "so far neither in Omarska, nor in any other area under the control of the New Ljubija Mines have any body or mass graves been found".(203) This appears to contradict overwhelming evidence to the contrary. The Ljubija mines’ management told Amnesty International that should evidence of new mass graves, or of mortal remains, emerge during the mines’ operations, the mines’ activities would be immediately stopped and the relevant authorities would be informed.(204) However, the very fact that the mine has restarted its operations could result in damage or destruction or enable concealment of evidence of war crimes and crimes against humanity and of mortal remains buried in the mining complex.

Survivors of the camps as well as relatives of the killed and "disappeared" have addressed the foreign investor and the new management of the mine asking that some of the mines’ installations and land to be preserved to commemorate the dead and the victims of the other crimes committed in the mines’ complex.(205) Edin Ramulić, whose father had been killed in Keraterm and who is now a representative of Izvor, a local association for the tracing of missing persons, told Amnesty International that survivors and the relatives of the victims are demanding that the "white house" building at Omarska is preserved as a memorial. Mittal Steel management is aware of the issue and told Amnesty International that the company is in contact with local NGOs to discuss appropriate ways to commemorate the victims.(206) In December 2005, Mittal Steel declared the intention to finance the construction of a memorial site at the Ljubija mines with the "white house" as its focal point.

The Ljubija workers
At its peak in pre-conflict Yugoslavia, the Ljubija mines employed 5,393 workers. After economic reforms in the late 1980s and early 1990s, the numbers began to drop. By 1992, the number of workers had come down to 4,350. At the beginning of the war, after the company came under the control of the local Bosnian Serb de facto authorities, the management of the Ljubija mines systematically discriminated against at least 2,000 non-Serb workers, by dismissing them en masse, solely because of their ethnicity. In doing so, the management of the company was directly involved in one of the elements of a campaign of "ethnic cleansing" against the non-Serb population.

Former workers told Amnesty International that on 22 May 1992 they heard announcements on the radio informing them that in view of the war, Bosniak and Bosnian Croat workers must not report for work anymore. Within weeks, letters arrived, addressed to each worker, signed by the management, informing them that their services were terminated. Amnesty International has obtained copies of these letters which stated that the termination of employment in May 1992 was grounded, inter alia, on a June 1992 decision of the Prijedor Crisis Staff.(207) This decision stated that all executive posts, posts involving a likely flow of information, posts involving the protection of public property, that is, all posts important for the functioning of the economy could only be held by personnel of Serb ethnicity.(208) Although this discriminatory decision applied in theory only to certain categories of workers, the management of the mines apparently used them to dismiss all non-Serb workers. Those workers, who appealed against their dismissal to the company’s commission for labour relations, had their appeals rejected and received written communication that they could not continue to be employed because their position was reserved for employees of Serb ethnicity.

Hasan Čaušević, 65, worked at the Ljubija mine for 30 years. He was away on his annual leave from 4 May to 5 June 1992 and later received a communication indicating that his services as a team leader were terminated on 22 May. He told Amnesty International:

The letter he received was identical to similar letters sent to hundreds of employees in the same period.
Hasan Islamović, 60, worked for 31 years at the mine in the maintenance department. He was an electrical engineer. "I was a craftsman, and they wanted to kill the intelligentsia, so I was not picked. I was taken to a camp because I was not important enough to be killed," he said. Then, in a convoy he was taken to Travnik with his wife, son and mother and from there they reached the border and fled to Austria. While in BiH, they had to keep paying bribes to spare their lives and some of their belongings. "My neighbour stood with a gun pointed at me while going through my things," he remembers. "If I had the money, I would take them to court".(209)

Beisa Hadžibajramović worked for nine years at the Ljubija mine in the metal production and forging unit. On 22 May 1992, she knew the war had started, so she did not report for work. She heard an announcement on radio, informing her, and others, that all Muslim employees had their jobs terminated. "This was not a war, this was destruction of Muslims," she told Amnesty International. "Everyone was too scared, so everyone stayed in their own home. People did not want to go out because they were being picke