GLOBAL JUSTICE, HUMAN RIGHTS AND DEMOCRACY UNIVERSITY OF SEVILLE EUROPEAN MASTERS' DEGREE IN HUMAN RIGHTS AND DEMOCRATISATION (SECOND SEMESTER COURSES) & LIBRE CONFIGURACIÓN COURSE OF THE UNIVERSITY OF SEVILLE TRANSITION TO DEMOCRACY (I): THE BOSNIA AND HERZEGOVINA EXPERIENCE CHRISTIAN STEINER WEDNESDAY, 22ND FEBRUARY 2006,

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SUMMARY OF BACKGROUND INFORMATION NECESSARY FOR UNDERSTANDING THE STATUS QUO OF THE BiH PEACE PROCESS The war in BiH Political and individual responsibilities. Development of the war. Termination through Dayton Peace Agreement.

The „ Dayton Peace Agreement “

Difficulties of Peace Implementation „ The three-sided nature and bitterness of the conflict and the expressed unwillingness of a substantial fraction of the Bosnian population to live peacefully with other Bosnians have led to a plethora of unprecedented and necessarily experimental constitutional proposals. The prospects for success of those that were finally adopted unfortunately depends less on the ingenuity of their design than on the will of the international community to enforce any arrangement made by or imposed on the parties “ (Szasz [1995a], S. 407).

KEY QUESTIONS FOR DISCUSSION What are the particularities of peace building in BiH? Does the role of the International Community in BiH promote or hinder the building of a sovereign, sustainable and democratic state? What is the role of human rights protection in the peace building process? Necessary obstacle or supportive element? What could the Human Rights Chamber and what can the Constitutional Court of BiH contribute to the peace process? What are the current perspectives of the peace process?

What are the particularities of peace building in BiH? Decision to remove Ante Jelavić. Bonn Powers. U 40/00 PEC Rules and Regulations. Comparison with Kosovo. International experts and local population.

Does the role of the International Community in BiH promote or hinder the building of a sovereign, sustainable and democratic state? Look at list and statistics of OHR decisions: Removals, impositions, (Entity) Constitution amendments, establishment of Commissions etc. Judicial Reform Process: Vetting. HJPC. Court of BiH. Organised Crime and Corruption. War Crimes Chamber. Economic Reform Process. Moving towards Europe. Control of unlimited powers? – Role of HRC and Constitutional Court. Political control. European Court of Human Rights? Fuljianin. Bičkačić.

What could the Human Rights Chamber and what can the Constitutional Court of BiH contribute to the peace process? Constitutional justice delivered through the jurisprudence of the Constitutional Court of BiH and the (former) Human Rights Chamber for Bosnia and Herzegovina is one essential means of peace building in Bosnia and Herzegovina. However, post-war Bosnia and Herzegovina required foreign assistance also in the constitutional judiciary. Constitutional justice in post-war Bosnia and Herzegovina would have been largely without effect if it were not for international support by foreign agencies in the form of monitoring and execution measures. Nonetheless, foreign intervention without the constitutional legitimisation by both courts would not have been feasible.

Examples of landmark CC/HRC Decisions U 5/98-II: Three fundamental rules for post-war Bosnia and Herzegovina: Continuity of statehood: Bosnia and Herzegovina is the sovereign State, subject of international public law; the Entities are not. This dictum confirmed that Dayton had not dissolved Bosnia and Herzegovina and that any separatist aspirations were unconstitutional; Distribution of responsibilities between State and Entities: Catalogue of responsibilities not exhaustive. Assume legislative competencies to the extent that this is necessary to meet its international obligations. This interpretation paved the way for important State legislation with integrative force ensuring the continued existence of a functional federal State; Constituent status of all peoples on the entire territory: Constituent peoples of Bosnia and Herzegovina have constituent status on the entire territory. Dramatic reforms of the Entity Constitutions and institutional composition.

...landmark decisions Return Process: Right to return. Personal security. Positive obligations of the State and Entities. Ferhadija Mosque cases. Srebrenica (admissibility ratione temporis?). City names.

What are the current perspectives of the peace process? EU integration. Opening of negotiations on Stabilization and Association Agreement with BiH in November 2005 upon completion of crucial conditions, inter alia: Defence Reform, Police Reform, War Crimes Prosecution. Shift from retrospective peace implementation (Dayton) to peace and security through association (NATO) and integration (EU).