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Published online by Cambridge University Press: 16 December 2020
INTRODUCTION
Bosnia and Herzegovina (BiH), as one of the countries in the former Yugoslavia, went through the worst conflict in Europe since the Second World War. BiH therefore ended on ‘the long list’ of countries in post-conflict situations that need to rebuild the rule of law. While it is true that the responsibility for (re) establishment of the rule of law rests primarily with the local population and should ideally be initiated or led by domestic actors in order to secure a ‘local ownership’ of the process, this option is not always available, and external assistance may be needed.
In the circumstances of BiH, the international community played a significant role by, inter alia, introducing various international components (including institutions, personnel, and new legislation incorporating international law) in order to actuate the rule of law. This chapter examines how successful were such rule of law efforts that were not rooted in the local context, but rather imposed from outside.
The rule of law is a complex system which strives to achieve various goals. The focus of this chapter is on two such goals: providing efficient and impartial justice, and upholding human rights. Due to the importance of the role of international law in achieving these goals, the chapter includes analysis of both the process of empowering domestic institutions to apply international law as well as on the actual application of international law.
The chapter starts by looking at the involvement of the international community in what could be described as a first constitutional moment, ie the conclusion of the Dayton Peace Agreement (DPA), of which the new Constitution is an inherent part. The first part examines the complicated state structure of BiH established by the DPA, the special legal nature of the Constitution, and the position of international law in the Constitution and some of the challenges on the road towards a full-fledged democracy, including problems with the discriminatory nature of some of the constitutional provisions.
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