CYIL 2014

KATEŘINA UHLÍŘOVÁ CYIL 5 ȍ2014Ȏ the war, not so much as a legal basis for creating a functioning state. 50 While assessing whether the ethnicity requirement in the Constitution amounted to a human rights violation and/or supported the promotion of peace, the ECtHR acknowledged the difficulty of writing a proper constitution in an immediate post-conflict context, when a society is inevitably deeply divided. 51 When seen through the prism of historical events, the ECtHR noted: [T]his exclusion rule pursued at least one aim which is broadly compatible with the general objectives of the Convention, as reflected in the Preamble to the Convention, namely the restoration of peace . When the impugned constitutional provisions were put in place a very fragile cease-fire was in effect on the ground. The provisions were designed to end a brutal conflict marked by genocide and ‘ethnic cleansing’. The nature of the conflict was such that the approval of the ‘constituent peoples’ (namely, the Bosniacs, Croats and Serbs) was necessary to ensure peace. This could explain, without necessarily justifying, the absence of representatives of the other communities (such as local Roma and Jewish communities) at the peace negotiations and the participants’ preoccupation with effective equality between the ‘constituent peoples’ in the post-conflict society. 52 It is acknowledged that certain shortcomings are unavoidable when re-establishing the rule of law in a post-conflict society. Moreover, the needs and priorities of the affected society whilst in a midst of building the rule of law might be rather different from countries with a long rule of law tradition. 53 However, precisely due to the different motivations and needs of post-conflict societies, it may not be always the best idea to conclude (or even impose) the new constitution immediately after the conflict and without the proper engagement of civil society. The constitution should be the product of a participatory process of local actors, rather than part of a rushed-through peace agreement. 54 Reconstruction efforts (including the legal sector) are not only an issue of principles, but also of means and timing. The current problematic situation in BiH proves this point and offers a lesson to be learned by the international community in other post-conflict situations. Furthermore, if it is agreed that differences of ethnicity were among the main causes of the war in BiH, then it is difficult to approve of the DPA (and some constitutional provisions), which again introduce the ethnicity requirements and therefore keep undermining the fragile rule of law. In other words, ethnicity came back full circle. It is rather clear that ‘Bosnia’s ruling parties really have nothing against allowing Jews, Roma, or other ethnic representatives to run for office. The problem lies 50 J. Marko, Post-conflict Reconstruction through State- and Nation-building: The Case of Bosnia and Herzegovina, in: European Diversity and Autonomy Papers (April 2005). 51 See the discussion at http://echrblog.blogspot.com/2010/01/part-of-bosnian-constitution.html (last visited 26 November 2012). 52 Sedjic & Finci v. Bosnia and Herzegovina , supra note 45, para. 46 (emphasis addded). 53 Belton, supra note 4. 54 Cahin also argues that too early elections in a post-conflict country transfer ethnical division into political division. In BiH, he adds, most extremist parties benefited in elections held only some months after the war. The Hague Academy of International Law Lectures (August 2009).

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