CYIL 2014

THE ROLE OF INTERNATIONAL LAW IN THE RULE OF LAW EFFORTS IN POSTǧDAYTON… 2. Rule of Law versus ‘Rule of Ethnicity’ 2.1 Dayton Peace Agreement and the Constitutional Architecture Peace is not merely the absence of war but the presence of justice, of law, of order – in short, of government. 11 The DPA was signed on 14 December 1995 in order to end the war in BiH. 12 The DPA entirely re-shaped BiH by separating warring parties into two Entities: the Muslim-Croat Federation (FBiH) and the Republika Srpska (RS). However, this stabilisation by separation into Entities set up a very complex, decentralized, and inefficient constitutional structure. 13 The DPA has been described by one commentator as a ‘masterful diplomatic creation precisely because of its imprecision – allowing all sides to claim some kind of victory’. 14 Each Entity was granted a high level of autonomy in exercising its constitutionally defined powers. 15 FBiH was further divided into ten separate cantons, each with its own Assembly and Constitution. In addition, there is a third separate administrative and territorial unit: Brcko District. 16 As one Bosnian Croat observed, ‘in no State do you have two entities, three nations, four constitutions, cantonal constitutions. How can you realize the rights? It is a forest of rules that no expert can go around in.’ 17 While the Preamble of the Constitution declares three constituent peoples (Bosniaks, Croats, and Serbs), Bosniaks and Croats have the status of constituent peoples only in the FBiH, and Serbs are constituent peoples just in RS. Thus, Bosniaks, Croats, and Serbs are constituent peoples, but not of the State of BiH, only of their ‘ethnically clean’ territory. 18 Moreover, the constitutional requirements of equal representation of constituent peoples at state institutions paralyze the effective functioning of a state. 19 It is argued that such constitutional arrangements continue to support and feed the ethnic differences, which have a serious impact on the 11 A. Einstein, in: O. Nathan and H. Norden (eds.), Einstein on Peace 371 (New York: Schocken, 1968). 12 Known also as General Framework Agreement for Peace (GFAP), available at http://www.ohr.int/dpa/ default.asp?content_id380 (visited 27 June 2013). 13 A. Maljevic, Legal and Actual Treatment of Juveniles within the Criminal Justice System of Bosnia and Hercegovina, in J. Junger-Tas and S.H. Decker (eds), International Handbook of Juvenile Justice 415 436 (2006). 14 Z. Pajic, A Critical Appraisal of Human Rights Provisions of the Dayton Constitution of Bosnia and Herzegovina, 20(1) Human Rights Quarterly 136 (1998). 15 See Art. III of the Constitution of BiH (1995). 16 Pajic, supra note 14. 17 Justice, Accountability and Social Reconstruction: An Interview Study of Bosnian Judges and Prosecutors, University of California, Berkeley and University of Sarajevo (2000), available at http:// www.law.berkeley.edu/files/IHRLC/Justice_Accountability_and_Social_Reconstruction.pdf (visited 10 March 2014). 18 For the general discussion relating to the right of self-determination, see V. Balaš, Právo na sebeurčení, Právník č. 2 (1997). 19 Requirement of equal representation affects a composition of the Parliamentary Assembly (Art. IV), the Presidency (Art. V), as well as that of the Constitutional Court (Art. VI).

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