341 / 532
325
THE ROLE OF INTERNATIONAL LAW IN THE RULE OF LAW EFFORTS IN POSTǧDAYTON…
of an international community over new legislation, some changes based on the
common law tradition were introduced. In terms of substantive law, qualifications of
certain crimes were harmonized with definitions of international crimes as defined in
the ICTY Statute by basically ‘copying’ relevant provisions of the ICTY Statute into
the CC BiH. Hence, the WCC applies all three categories of international crimes –
war crimes, crimes against humanity, and genocide.
In sum, theWCC frequently relies on international law by referencing international
agreements, case law of the ICTY and other courts, and academic writings. There is
a generous trend towards international law, including customary international law,
which the WCC has held to be an integral part of BiH national law. In this respect, it
is worth noting that the practice of the WCC ‘differs from practice of all other courts
prosecuting international crimes in the territory of the former Yugoslavia’.
91
4. Conclusion: the Rule of Law Still in the Making
The legal, political, and social environment in BiH is still unstable. The ECtHR
in
Sejdic and
Finci v. BiH
observed that there have been many significant positive
developments in BiH since the conclusion of the DPA.
92
Many challenges remain,
too, including those brought about by the DPA itself, such as the division of BiH
along ethnic lines. As a result, there is an inherent tension between ethnic separation
of BiH and declared human rights guarantees that should protect individuals
regardless of their ethnicity.
93
In other words, we can still witness a prevailing ‘rule of
ethnicity’ rather than a rule of law in many areas of Bosnian society.
Due to the passivity of local actors after the conflict and the ethnicity issues,
which keep undermining the fragile rule of law, international involvement was
needed. One of the outcomes of the international intervention in the legal sector
was the establishment of the WCC.
94
The international law-friendly approach at the
WCC is the result of its accepting (or having to accept) the ‘legal concept’ of the
ICTY, the presence of international personnel, and training seminars organized for
the domestic personnel. It should be emphasized that the ICTY’s influence over the
application of international criminal law holds true only for the WCC, and does not
affect the cantonal and district courts, which operate independently of the WCC.
As for the legacy of the WCC, it remains to be seen whether its frequent reliance
on international law will disappear with the departure of the internationals. If so,
part of the reason may be that domestic actors did not participate in the changes to
their legal system. Therefore, they often identify international law with international
origins of law, as something that came from without, not within the state. But despite
91
Ivanišević,
supra
note 63.
92
Sedjic & Finci v. Bosnia and Herzegovina
,
supra
note 46.
93
Pajic,
supra
note 14.
94
On the establishment of the Bosnian Human Rights Chamber, see A. Buyse, Virtuous Flexibility –
The Application of International Human Rights Norms by the Bosnian Human Rights Chamber, in
E. Kristjánsdóttir, A. Nollkaemper, C. Ryngaert, (eds.),
supra
note 1.