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THE ROLE OF INTERNATIONAL LAW IN THE RULE OF LAW EFFORTS IN POSTǧDAYTON…
elsewhere: Provisions of the constitution also discriminate against Bosnian Serbs in
the Bosniak and Bosnian Croat-dominated federation Entity, and against Bosniaks
and Bosnian Croats in the Bosnian Serb-dominated Republika Srpska Entity. And
the powers that be would prefer to maintain that status quo.’55 One of the steps
towards a deeper democratic consolidation would be to depart from the current
status quo and replace the ‘Dayton phase’. However, debates on the constitutional
reform have so far been unsuccessful.56 The Council of Europe has already warned
that without the necessary constitutional changes, neither it nor the EU will consider
the upcoming elections (to be held in October 2014) legitimate.57
The ability of the ECtHR’s decision to initate any real change on the ground
is rather limited.58 BiH finds itself in quite a peculiar situation: the Constitution,
which is a part of the international treaty (DPA), is in some of its provisions
discriminatory, ie the application of an international treaty in this particular context
is not improving, but rather worsening the situation of the persons international law
purports to protect.
Moving from the human rights considerations relating to the Constitution, the
following part will assess the rule of law efforts in the area of criminal justice. The
establishment of the WCC represents one of the most significant efforts in BiH to
prosecute crimes under international law committed during the 1992–1995 armed
conflict. Due to the importance of the role of international law in this respect, the
next part focuses on the process of empowering this domestic institution to apply
international law.
3. The Establishment of the War Crimes Chamber of the Court of Bosnia
and Herzegovina as a Contribution to the Rule of Law Efforts in BiH
3.1 Establishment of the WCC
The above section helped to illustrate the complex legal environment in which
the WCC must operate, ie a complicated state structure set up by the DPA and the
prevailing ‘rule of ethnicity’ rather than rule of law, which also affects the performance
of local judges and prosecutors, as discussed below.59
55 A. Alic, Ethnic Hysteria and Status Quo Discrimination in Bosnia, in Radio Free Europe (5 May 2010).
56 For a thorough analysis of the proposed and failed reform see J. Marko, Constitutional Reform in
Bosnia and Herzegovina 2005-06, 5 European Yearbook of Minority Issues (2006/07).
57 Bosnia’s Gordian Knot: Constitutional Reform, Europe Briefing N°68 (12 July 2012), available at
knot-constitutional-reform.aspx (visited 27 April 2014).
58 See eg the comment by the co-counsel for Finci Baldwin that ‘the US, EU and the other states who still
play a major role in Bosnia, should ensure the ruling is put into immediate effect by backing a change
in the constitution’. Quote from
ruling-racial-and-religious-exclusion (visited 14 September 2010). However, elections in October 2010
were again held on the basis of the (discriminatory) constitutional framework established by DPA. As
of July 2014, situations still remains the same.
59 The legal environment in BiH is further complicated by the fragmented criminal legislation with