Strasbourg’s Bosnia Ruling Holds Lessons for Everyone

European Court of Human Rights | Photo by: Fred Schaerli

For the past decade and under significant US pressure, Bosnia-Herzegovina has sought to expel Arab ex-combatants, the so-called “mujahedin.”

Bosnia should take the decision of the Strasbourg court as a cue to give up its misguided attempt to circumvent basic human rights protections.
 
As is well known, around a thousand foreign Muslim volunteers fought alongside the wartime Sarajevo government, and most left after the 1995 Dayton accord.

A few settled in the country as civilians, naturalized, and started families with their Bosnian-born wives.

Despite the lack of evidence of criminal activity, the state has pursued them with an almost vindictive persistence: expelling some to face torture and ill treatment in Guantanamo, Egypt, and Tunisia, while revoking the citizenship of others without due process as a prelude to forcible repatriation.

Arab aid workers and others who were never fighters have also been caught up in this, including some of the infamous “Algerian Six.”
 
For the past three years, Bosnia has used its new EU-funded immigration detention facility outside Sarajevo to warehouse these longtime residents without charge, simply labeling them as threats to “national security” without divulging any of the evidence against them.

For these reasons, some of the detainees have taken to calling the facility “Bosnatanamo.” 

While the conditions are not as punishing as those at the prison in Cuba, the sense of indefiniteness and arbitrariness resonates – as does the clear US-driven “counter-terrorism” agenda, as confirmed in cables revealed by Wikileaks.
 
The European Court of Human Rights this week delivered a rebuke to Bosnia’s handling of the issue.

The Court rendered decisions in two related cases, one brought by Imad al-Husin, widely known as Abu Hamza al-Suri, a Syrian who is arguably the public face of Arab mujahedin in Bosnia.

The other applicant, Fadil al-Hamdani from Iraq, also served in the army.  Unlike most other mujahedin, both came to former Yugoslavia as students, years before the 1992-5 war in Bosnia. Al-Hamdani has lived in Zenica since 1979.  Both have Bosnian-born wives, children, and even grandchildren.
 
The Court found, unsurprisingly, that deporting Abu Hamza to Syria would present an unacceptable risk of torture or ill treatment. 

At the same time, it ruled that Iraq has stabilized sufficiently to invalidate al-Hamdani’s fears of abuse upon return. 

The Court declined to consider al-Hamdani’s arguments that deportation would also violate his family rights before Bosnian courts conclusively weigh in on the matter. 

Interestingly, the one dissenting judge in these cases, Ljiljana Mijovic, from Banja Luka, indicated some sympathy on this particular point, notwithstanding her sharp disagreements from the majority on all other issues.
 
As a result of the Court’s decision, Abu Hamza should be freed and granted asylum, though Bosnian authorities are now floating the idea of seeking to deport him to a third country.

In the absence of any viable alternative destination, this suggestion seems like nothing more than a thin pretext to continue his detention. 

As for al-Hamdani, he will likely remain under house arrest – where he was earlier transferred from the detention center on other legal grounds – pending the resolution of his case in the Bosnian courts, which could take months if not years.  Appeals, if any, must be filed within three months.
 
On the detention issue, the Court took a more uniform approach, expressing concern that Bosnian law allows the detention of any foreigner declared a threat to national security, whether or not their deportation has been ordered.

This frighteningly broad provision was an easy target for the Court, which reminded Bosnia that “detention on security grounds only is not permitted.” 

Taking the path of least resistance, the Court then ruled using an apparently straightforward technical issue: Bosnia did not file formal deportation orders until years after their arrests.

The Court found that the detention lacked any legal basis prior to the start of deportation proceedings and awarded the applicants compensation of a few thousand euros each for those time periods.
 
But once deportation orders had been issued, the Court did not analyze Bosnia’s actions, despite its own precedent against the use of secret evidence. 

In the case of A. and others v. U.K., the Court’s grand chamber unanimously invalidated a British scheme under which foreigners could be detained on national security grounds if some of the evidence was kept from them but given instead to a “Special Advocate” who could work on their behalf but not act as their attorney. 

Bosnia’s use of secret evidence makes no similar attempt to balance secrecy and fairness and therefore seems irreconcilable with the reasoning of A. and Others.
 
Bosnia should not take the Court’s unfortunate silence on the use of secret evidence as an endorsement of this tactic, but rather as a sign that it got lucky, the cases having been decided on other grounds.

Instead of waiting years for further litigation to, as is highly likely, invalidate the use of secret evidence, Bosnia should end this practice immediately, along with all other forms of arbitrary detention. 

And the judgments from Strasbourg should be a clear signal to the rest of the international community – especially the United States – to stop using Bosnia and other states to host miniature Guantanamos.
 
Darryl Li is a doctoral candidate in Anthropology & Middle Eastern Studies at Harvard University and assisted in the preparation of a third party intervention in the Al-Husin case before the European Court of Human Rights.  The views expressed here are his own.