INTRODUCTION

Written from the point of view of a Clinical Psychologist, this chapter takes a social/psychological/phenomenological approach to the prosecution of rape and sexual violence in international courts. The central assumption is that the affective/cognitive/behavioural aspects of human beings determine to a large degree how we see the world, how we judge, how we think and, especially in this case, how court members and all actors perceive and react to rape. Attitudes towards rape survivors, and more broadly toward sexuality, as well as stereotypes of both the survivor and the perpetrator can and have affected the judgments of court members. Bias is frequently denied, and holders of such bias hide behind legalism and illusions of objectivity.

The discriminatory practices against women are the ever present context in this globalized world, and what takes place within courts is no exception. Feminist scholars, during the second wave of feminism, struggled to challenge the assumption that law is objective and uninfluenced by gender, race, class, personal beliefs, and country of origin. This continues to be an ongoing struggle. Considerable progress has been made in the recognition of rape as a war crime. Yet, in the actual practice of the prosecution of rape and sexual violence crimes, the personal/subjective nature of the law and the impact of the gender of its practitioners too often remain unexamined and unchallenged. This chapter presents the results of an emipirical study, based on interviews with a wide range of court officials at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague and the World Criminal Court (WCC) in Sarajevo. Central focus of this chapter is if/how gender-bias affects the prosecution of sexual violence in war and conflict situations.

INTRODUCTION

Sexual violence is a pervasive public health and human rights issue with potential serious effects on physical and mental health, and social well-being. Unfortunately, there are often few available data on prevalence, risk and protective factors, and consequences to survivors. This lack of data and the paucity of programming approaches which have been assessed may result in interventions that are not effective and may negatively impact the fight to end impunity and achieve justice for survivors. In settings affected by conflict and other humanitarian crises, the challenges to obtaining data to inform prevention of and response to sexual violence may be magnified.

The increasing attention to sexual violence as a tactic of armed conflict has contributed to increasing demands for data on sexual violence in conflict settings. Data are being requested by a range of different actors for different reasons. Many of the demands and the responses to them do not take into account the limitations of available data and the feasibility of collecting other data. This increased demand for data and the actions taken to respond to it raise methodological and other ethical issues including ethical, safety and methodological issues related to collection, sharing and use of data.

This chapter explores some of the key sources of data which may be available at country level and the limits to what they can tell us about sexual violence in the setting (methodological limitations). It will also identify ethical issues related to data collection and sharing, and discuss the development and content of recommendations to inform those who are collecting, using or supporting the collection of data on sexual violence. These are important for those involved in international criminal investigations and prosecutions both as users of existing data and collectors of new data.

BACKGROUND

Sexual violence in conflict is not a new phenomenon nor can it be entirely separated from sexual violence in the setting outside of the conflict. Sexual violence can occur during attacks on civilian populations, while people are fleeing fighting, and among those who are internally displaced or refugees whether in camps, urban settings, or living within host communities.

SUMMARY

War and atrocities are intricately interlinked. Armed conflict has occurred since the existence of humankind and with it, sexual violence is rampant, committed both opportunistically and strategically. With war comes misery and destruction paralleled only perhaps by the worst natural disasters unleashed by the power of nature. Weaponry and technology have become far more sophisticated in the past century and are used in many, but by no means all, of the contemporary wars. Violence, including against civilian women and girls, not only continues, it has increased as civilians have become the primary targets of armed conflict.

Traditionally, women were regarded as legitimate spoils of war or rape as an inevitable by-product of war. Although opportunistic rape continues during the atmosphere of violence, chaos, hatred, retaliation, and the breakdown of the rule of law common in armed conflict, various forms of sexual violence are also used as strategic weapons of warfare, committed as part of a calculated strategy to terrorize, demoralize, and destroy victims, families, and communities or associated groups.

After centuries of wars within nations and between nations, it took the monstrous atrocities committed in the 1940s during World War II for the international community to finally create two international war crimes tribunals to try those most responsible for serious crimes committed during the war. Hence, when the Second World War ended, the Allied victors established the International Military Tribunal (IMT) in Nuremberg, Germany to try vanquished Nazi leaders, and the International Military Tribunal for the Far East (IMTFE) in Tokyo, Japan to prosecute senior Japanese officials. Some crimes of sexual violence were explicitly or implicitly prosecuted in these trials, although the primary focus was on prosecuting crimes against peace, considered the supreme crime.

Despite the historical significance of and legal precedent set by these groundbreaking efforts to establish individual accountability for massive crimes, impunity reigned for gender and non-gender crimes for nearly five decades afterwards in armed conflicts scattered throughout the world.

In 1993 and 1994 – nearly half a century after the Nuremberg and Tokyo trials – the United Nations Security Council created two ad hoc international war crimes tribunals to punish individuals responsible for serious violations of humanitarian law committed in the territory of the former Yugoslavia and for genocide in Rwanda.

INTRODUCTION

Sierra Leone is a small country in West-Africa bounded by the Atlantic Ocean, Liberia and Guinea. From approximately 1991 to 2002 the population was subjected to a brutal civil war the hallmarks of which included sexual violence, amputation of limbs and the abduction of children by the warring factions to be “child soldiers.”

Following the declaration of peace in January 2002 the Government of Sierra Leone negotiated an agreement with the Security Council of the United Nations to set up a war crimes tribunal to try those responsible for the crimes committed in the course of the conflict. The Security Council had already, on 14 August 2000 passed Resolution 1315 (2000) expressing “deep concern at the very serious crimes committed within the territory of Sierra Leone against the people of Sierra Leone and United Nations and associated personnel and the prevailing situation of impunity.”

The resultant treaty setting up the tribunal that became known as the Special Court for Sierra Leone (SCSL or Special Court) was entered into between the United Nations and the government of Sierra Leone on 16 January 2002. It was the first of the treaty-based hybrid international war crime tribunals. Its mandate was more restricted than those of the International Criminal Tribunal for the former Yugoslavia (ICTY) or the International Criminal Tribunal for Rwanda (ICTR) as its powers were limited to try those who bore “the greatest responsibility” for war crimes, crimes against humanity and breaches of international criminal law during the period 30 November 1996 to 18 January 2002 (i.e. less than the entire conflict period). Unlike the ad hoc tribunals it does not have Chapter 7 powers and included in its jurisdiction are crimes under domestic law that are: offences relating to the abuse of girls under the Prevention of Cruelty to Children Act, 1926, and offences relating to the wanton destruction of property under the Malicious Damage Act, 1861. The agreement between the United Nations and the Government of Sierra Leone provided for the appointment of judges, the prosecutor and deputy prosecutor with the Government of Sierra Leone appointing one of the three judges in each of the Trial Chambers, two of the five judges in the Appeals Chamber and the deputy prosecutor. Other judges and the prosecutor were appointed by the United Nations.

Near the end of the documentary ‘Weapon of War’ (IF Productions, 2009), a young woman agrees to meet with the man who gagged, raped and beat her.

They meekly shake hands and sit down at a table together. She looks right at him and says calmly: “I’m not sure you understand that you are now responsible for my life.”

Her fiancé left her after she was raped and now she has to live with her parents, she says. “I’ve lost all of my chances.”

“Please forgive me,” responds the lanky man, a former member of the Mai Mai militia group in the Democratic Republic of Congo (DRC).

He looks down, avoiding the young woman's persistent gaze. “I know now what I did,” he says softly. “We have to forget and forgive each other.”

After speaking for a few minutes, she says: “I can forgive you now.”

Then, in an apparent effort to further atone, he gives her a small piglet, which she accepts.

“I’m very pleased he realizes we’re human beings, too,” she says shortly afterwards.

The extraordinary scene – like much of the documentary – upends commonly held notions of what it means to be a perpetrator and a rape victim. It also complicates the idea of what exactly constitutes justice in a country where sexual violence has reached epidemic proportions and impunity continues to reign. Since war began to rage in 1996, it is estimated that hundreds of thousands of Congolese women have been raped and often viciously brutalized. While numerous articles, reports and films have explored the issue of sexual violence in the DRC, ‘Weapon of War’ is unusual because it is told mainly from the point of view of the perpetrators. Most of the rapists are portrayed not as faceless monsters, but as men haunted and often severely traumatized by what they have done.

Dutch filmmakers and twin sisters Ilse and Femke Van Velzen have for several years concentrated their work on Africa, previously making films about Angola and South Africa. Their first film about the DRC, Fighting the Silence, focused on rape victims who were abandoned by their husbands.

INTRODUCTION

The Rome Statute of the International Criminal Court (ICC) explicitly codified, for the first time in international criminal law, the crime against humanity of persecution based on gender. The ICC will therefore be the first international criminal tribunal to prosecute gender-based persecution as a crime against humanity. This may occur in the case of Callixte Mbarushimana, a senior leader of the Forces Démocratiques pour la Libération de Rwanda (FDLR) charged with, inter alia, persecution in the Democratic Republic of the Congo achieved through means including rape. It may also occur in the case of three other individuals – Ahmad Muhammad Harun (“Harun”), Ali Muhammad Ali Abd-Al-Rahman (“Ali Kushayb”) and Abdel Raheem Muhammad Hussein – who have also been charged with persecution as a crime against humanity, including persecution in Darfur, Sudan, achieved through the intensely gendered act of rape. It is an opportune time to consider the potential benefits and challenges currently facing the ICC in prosecuting gender-based persecution.

This chapter begins by exploring judgments on the gendered dimensions of the crime against humanity of persecution issued by the International Criminal Tribunals for the Former Yugoslavia and Rwanda (ICTY and ICTR respectively). It finds that they provide helpful guidance to the ICC in identifying actions that might be considered to be directed against a group or collectivity (women, girls, men or boys) on the ground of gender. It then considers certain difficulties associated with the prosecution of gender-based persecution. The first difficulty comes from the way in which the term ‘gender’ is defined in the Rome Statute: “the two sexes, male and female, within the context of society.” This definition is not necessarily clear, and leaves room for judicial misunderstanding or misinterpretation. The second challenge is that gender-based persecution often intersects with other forms of persecution: persecution can be carried out using acts directed simultaneously against a member of a group or collectivity because of his or her political affiliation, race, nationality, ethnicity, culture, or religion, and due to his or her gender. Thus, the ICC's Prosecutor will need to clearly outline the nature of this intersectionality and, in so doing, explain why it is important for the Court to recognize not just one, but both, aspects of the intersection so as to avoid gender disappearing in favour of the more ‘traditional’ forms of persecution.

International judicial institutions have shepherded in a “coming of age” of sexual violence prosecutions under international criminal law and humanitarian law. The task is promising yet tenuous: It requires vision and vigilance. The chapters in this book deliver both prerequisites by their articulation of tools to fortify enforcement of international criminal law's safeguards against sexual violence.

Enforcement is complex and entails more than well intended drafting of express legal provisions into a statute or convention. Edicts banning wartime sexual assaults were inserted into ancient warrior codes. International conventions, such as the 1929 Geneva Convention prohibited infliction of sexual assaults upon female and male prisoners of war. In the immediate aftermath of the World War II, martial law decrees such as Control Council No. 10 explicitly proscribed rapes as acts of crimes against humanity. Indeed, the Nuremberg and Tokyo international military tribunals investigated, prosecuted and handed down convictions for war crimes based upon sexual violence. Still, these precedents heralded no manifest undertaking of sexual violence prosecutions as international crimes in national courts and, along with other illicit conduct endured the dearth of adjudications at the international level. Derelict attention, unapologetic impunity and ignored or misconstrued jurisprudence openly paraded the inability to enforce prohibitions of sexual violence under international law.

During the past two decades, in a welcomed realignment of intent, the international community directed concerted scrutiny at the pervasiveness of impunity for war crimes, crimes against humanity and genocide. International and internationalized judicial institutions emerged to respond to the calls for enforcement and to conduct the tripartite process of investigations, prosecution and adjudications of international crimes. Whether generated by Chapter VII of the United Nations Charter, by a United Nations agreement or by the multilateral consensus of a treaty, the responsibility of most of these judicial institutions was to redress the heretofore pithy enforcement of wartime prohibitions and acts of crimes against humanity or genocide related to specific geographical and time bound situations, with the exception of the International Criminal Court that will exercise prospective jurisdiction.

A BRIEF HISTORY OF THE PROSECUTION OF SEXUAL VIOLENCE AS AN INTERNATIONAL CRIME

Rape and sexual enslavement has been considered for centuries not only as a natural part of war, but in some cases, as part of a romanticized version of war. The Iliad depicts a war in ancient Greece, rooted in a conflict between two military leaders over a captured and enslaved enemy woman. Many classical paintings depicting wartime and the atrocities that occurred during war included rape. As the Soviet army moved westward onto German territory in early 1945, large numbers of women were raped. Also during that time, German troops occupying Eastern Europe raped girls and women of various ethnicities and organized brothels in labor and concentration camps. Extensive sexual violence also occurred in the Pacific theater during World War II. The invasion of Nanking became known as the Rape of Nanking, using rape not just as a metaphor, but also because the Japanese troops committed rape against the civilian Chinese population on a massive scale. Following this was the widespread implementation of the so-called “comfort women” who comprised more than 200,000 women from across East and Southeast Asia, mostly Korean, recruited by force to serve as on-call prostitutes to the Japanese soldiers. Most recently, rape has become a commonly accepted “weapon of war,” employed as a tactic to attack and terrorize civilian populations. Sexual violence has played an important role in the conflicts in Rwanda and the Balkans during the early 1990s, Iraq, Sierra Leone, Liberia, Darfur, and in the Democratic Republic of Congo.

One of the first explicit prohibitions against rape was the Lieber Code, enacted during the American Civil War by President Lincoln to outline the conduct of Union soldiers. Among the prohibitions was that against rape which was punishable by the military commanders who could execute a soldier if that person committed a prohibited act. However, since then, the body of international law of war, which sovereign states had been assembling since the 1860s, has largely neglected rape. Most laws implicitly prohibited rape rather than prohibiting it outright. For example, the Fourth Hague Convention of 1907 implied such a prohibition as respect for and protection of “family honor and rights.”

This volume is the product of a working group on the international rule of law and international law in domestic courts, which commissioned a number of chapters on post-conflict situations.

The editors wish to thank the authors who responded to the invitation to participate in this project, some of whom are promising new voices in their field and others who are established experts, but all of whom have acquired a deep and personal first-hand knowledge of the legal cultures they write about. The Rule of Law Working Group also deserves acknowledgment for the initial conceptual discussions that led to the present collection. Aristotle Constantenides and Cyprus Law School deserve thanks for accommodating the first meeting in Nikosia; Rosemary Byrne, likewise, hosted a meeting at Trinity College in Dublin. Special thanks go to Martine van Trigt for organization and support not only of a meeting in Amsterdam but throughout the life of the project. Sincere thanks also to Belinda Macmahon and Scarlet Wagner for their editorial work on the manuscript.

INTRODUCTION

The Rwandan Prosecutor General, Martin Ngoga, leant forward to emphasize his point, ‘Justice in this country has been contextual. What they call double standards is justice in a contextual environment.’ He was responding to the 2007 decision by the International Criminal Tribunal for Rwanda (ICTR) not to transfer genocide-related cases to the Rwandan domestic courts. Rule 11 bis of the Rules of Evidence and Procedure of the ICTR governs the transfer, to competent national jurisdictions, of individuals indicted but not yet tried by the ICTR. This rule was intended to create a bridge between the practice of international criminal law and domestic criminal justice processes, by ensuring that domestic courts had an adequate legal framework to try international crimes and provide suitable fair trial guarantees. However, on 8 October 2008, the Appeals Chamber of the ICTR upheld the decision not to transfer the case of Yussuf Munyakazi from the jurisdiction of the ICTR to the Rwandan national courts. This was followed by two consistent decisions relating to Gaspard Kanyarukiga and Ildephonse Hategekimana, respectively.

The Trial Chambers were not persuaded that the accused would receive a fair trial in Rwanda. Supported by an influential amicus curiae brief from Human Rights Watch (HRW), it was successfully argued that the accused would be unable to raise an effective defence before the Rwandan national courts. This occurred despite the promulgation of specific legislation in Rwanda governing the transfer of cases from the ICTR and the extensive domestic prosecution of the international crimes of genocide, crimes against humanity, and war crimes at a national level through the formal criminal courts, both civilian and military, and on every hill across the country through the gacaca courts. Given Rwanda's use of international criminal law within its own legal structures, the decision by the ICTR judges not to transfer cases to the national courts suggests that, from the Tribunal's perspective, the promulgation and application of such laws has not secured the country's domestic rule of law. Meanwhile, inside Rwanda, these decisions raise the important question as to what role has international law played in their domestic setting?

INTRODUCTION

The international rule of law subjects the international order to the principles of the rule of law – a concept that originates in domestic frameworks – and externalises its rationales to the relations between states and other subjects of international law. One of the main principles of the rule of law requests the law to be equally enforced by an independent judiciary. For this purpose, the international legal framework has shouldered national courts with a major responsibility to enforce international humanitarian and criminal law. In accordance with this structure, domestic courts, which constitute an important pillar of the international judicial enforcement mechanism, have two judicial functions: they operate as agents of the international legal systems, and as conventional domestic institutions. While the international judicial system, composed of national and international courts, has been established, international law has also continuously been enforced by political actors, which have been traditionally confined to that role through the exercise of diplomacy. From a rule of law perspective, it has been hoped that the growing practice of courts would gradually replace the political enforcement of international law, and that the proper function of national courts in their application of international law, along with the work of international courts, will dictate the extent to which the international order is governed by the international rule of law. This chapter examines the function, in a post-conflict context, of one of these national judicial actors: the Serbian War Crimes Chamber.

In 1993, as a reaction to atrocities in the wars in the former Yugoslavia, unprecedented in Europe since World War II, the international community established the ad hoc International Criminal Tribunal for the former Yugoslavia (ICTY), mandated under Chapter VII of the UN Charter to try those responsible for such crimes. Although the Statute of the ICTY (Article 9) establishes its jurisdiction with primacy over the national courts, it has never been implied that it limits their responsibility in prosecuting war criminals. Each state of the former Yugoslavia has retained its own jurisdiction over the crimes falling under the ICTY Statute and its own obligation, both under international and national laws, not to leave such crimes unpunished.

Having presented the preceding thirteen case studies of how domestic courts apply, or do not apply, international law in various post-conflict and transitional settings (specifically, in Afghanistan, Bosnia and Herzegovina, East Timor, Iraq, Nepal, the Russian Federation, Rwanda, Serbia, and South Africa, as well as two cross-cutting studies), the time has come to take stock and draw some conclusions, while duly acknowledging the heterogeneity of the legal systems and post-conflict situations studied. We structure these Concluding Observations under the headings that we identified in the Introduction, and use these to integrate the lessons learned from the case studies.

In section 1, we provide an overview of the types of ‘constitutional moments’ that allowed for an increased role of national courts in the application of international law in the various situations studied. In section 2, we discuss the form and substance of domestic courts’ empowerment to apply international law in the different settings. In section 3, we review the role of the various actors involved in receiving or importing international law. Any concerns of the reader that an overly optimistic picture is presented by this overview of empowerment techniques should be immediately assuaged in section 4, which addresses the various limitations of applying international law in domestic courts which may have grown more accustomed to a violent and authoritarian political order than to a robust rule of law. Finally, section 5 discusses the effects and legacy of international law implementation by domestic courts in post-conflict or transitional situations. It questions whether the application of international law really makes a difference for post-conflict societies, and whether international intervention produces any lasting effects in terms of rule of law entrenchment or broader societal stabilization.

It is to be stressed up front that the conclusions in section 5 concerning recent changes in the countries studied are by necessity tentative and can only be assessed conclusively over a longer time-horizon. Also, we do not suggest that the gap between official support for international law and the actual application of international law by domestic courts is a phenomenon peculiar to post-conflict societies.

INTRODUCTION

For some time now, we have been told that the rule of law is high on the international agenda for several reasons: it brings political stability and prompts economic growth, and it is also central to sustainable development and contributes to international peace and security. Working around the hypothesis of an international version of the concept, I suggested that ‘the “rule of law” is undoubtedly one of the most powerful expressions in the modern world. In a sense, it has become an activity in itself, a mental-social phenomenon which exists within human consciousness and acts independently within physical social realities, like a pat on the back or a slap in the face.’ Indeed, it can be argued that the rule of law has become a ‘buzzword’ (‘buzzphrase’) in legal theory and political studies. To borrow from Ogden and Richard's philosophy of language, the rule of law is a formulation of ‘hurrah!’ words; that is to say, words that provoke a good feeling in those who voice or hear them.

On the more cynical side, Carothers observed: ‘[o]ne cannot get through a foreign policy debate these days without someone proposing the rule of law as a solution to the world's troubles.’ The United Nations has fuelled such criticism in recent years, including in the context of post-conflict states and other situations of transition. Witness, inter alia, the 2004 UN Secretary-General's report on the rule of law and transitional justice, the outcome document of the 2005 UN World Summit, with a full section on the rule of law, and the uninterrupted string of resolutions by the UN General Assembly, from 2006 to 2010, all entitled ‘The Rule of Law at the National and International Levels’, as well as the creation of a rule of law unit in the Executive Office of the UN Secretary-General and the many reports by UN officials on the rule of law since 2006. In short, perhaps the rule of law has been a victim of its own success because, as we all know, too much of a good thing can be harmful.

States that are in transition after a violent conflict or an authoritarian past face daunting challenges in (re)establishing the rule of law. The legal system may be in need of rebuilding or reinvention to bring a climate of lawlessness to an end and create the conditions for a more stable future. The culture of impunity, lack of accountability, lack of rights protection, and, more generally, lack of respect for the rule of law that may have been pervasive in societies before undergoing the transition from autocracy to democracy often persist during the transition period itself. To the extent there is law, local ‘strongmen’ may be above it, or the law is co-opted by power to serve its ends. During the transition from violence or oppression, the pre-existing legal system, in whole or in part, may be temporarily suspended or permanently dismantled, and with it any semblance of the rule of law.

The rule of law challenges that characterize this period may include generalized insensitivity toward the plight of victims of the conflict or the deposed authoritarian regime; major criminals may get away with reduced sentences or outright impunity, ringleaders of criminal enterprises may escape their due because domestic legislation is not adequately equipped to address such modes of responsibility as command responsibility or joint criminal enterprise; the economic and social rights of marginalized groups may be insufficiently protected; judicial review of executive decisions may be non-existent; and the political branches may routinely interfere with the affairs of the judiciary.

During transition from one system to another, different layers of law may moreover be operational at the same time, creating confusion as to which legal standard should apply. Such heterogeneity of law, or legal pluralism, hardly furthers the goal of legal certainty so essential for dealing with past abuses onthe basis of the rule of law as opposed to arbitrariness. If there is no continuity of the domestic legal system, the break with the troublesome past may entail impermissible retroactivity of new law. The new regime may also need to grapple with abuses that were committed under color of law in the old regime, by persons obediently doing their duty.

INTRODUCTION – PROMISING CONDITIONS AND UNFULFILLED PROMISE

In a book that contains so many laudable chapters detailing the rising importance of international law applied directly in domestic courts, Iraq stands as a stark anomaly. Following the departure of the US and UK administered Coalition Provisional Authority (CPA) and the restoration of Iraqi sovereignty to a democratically elected government, Iraq's authorities seem to be at best equivocal and at worst somewhat hostile to the notion that Iraq's domestic courts should play a role in ensuring that Iraq abide by its international legal commitments, in particular as concerns the matters of human rights and criminal law that attract much scholarly attention.

This is rather surprising for two reasons. First of all, Iraq is not a nation that is wary of international commitments. This was very much the case historically, and even more so following the fall of the Saddam regime. Prior to 2003, Iraq was a signatory to most major human rights treaties, among them the Genocide Convention (acceded to in 1959), the International Covenant on Civil and Political Rights (ICCPR) as well as the International Covenant on Economic, Social and Cultural Rights (ICESCR) (both ratified by Law 193 of 1970), the International Convention on the Elimination of All Forms of Racial Discrimination (ratified 1970), the International Convention on the Elimination of All Forms of Discrimination Against Women (ratified 1986), and the Convention on the Rights of the Child (ratified 1994).

If anything, the commitment to international law as a formal matter has grown more robust. Even a cursory glance at Iraq's legislative achievements over the past legislative term, running from 2006 to 2010, demonstrates a decided commitment to enter into international obligations and treaties of various sorts rather than, as regrettably happens all too often in the United States, to avoid them on the grounds that they are some sort of pernicious ‘entanglement’. In 2008 and 2009 alone, for example, Iraq's Council of Representatives, which serves as its legislature, ratified or acceded to twenty-two separate international treaties or covenants, a number that I surmise would compare well with ratification rates in nearly any other nation over the same time period.

INTRODUCTION: THE ROLE OF LAW IN STABILISING CONFLICT

There has been a lot of attention in recent years about improving the quality of legal systems in overseas jurisdictions. This is reflected in the growing proportion of rule of law components in development assistance and, especially, in postconflict stabilisation missions. External actors endeavour to strengthen the role of international legal standards in the courts and, more broadly, the political life of societies emerging from violent conflict. Virtually all stabilisation missions contain today important rule of law components, a shift in emphasis that is mirrored in bilateral financial assistance. The international engagement in Afghanistan since December 2001 has been no exception, having placed a heavy emphasis on introducing international legal norms into the Afghan legal and political system.

This concerted interest in the rule of law in peripheral overseas societies is generally justified by reference to the normative conviction that human beings are equal and deserve equal protection, thus calling for the application of uniform international standards. This essentially moral position is sometimes cloaked in the language of enlightened self-interest, claiming that the protection of equal norms abroad will prevent negative spill-over in the future:

To many, the veracity of this causal chain was powerfully affirmed by the painful experience of the attacks of September 2001, which directly led to the costly and on-going military intervention in Afghanistan. According to this popular reading of history, societal collapse can never be contained, but will eventually reverberate through the international system.

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.