At the risk of being accused of being voyeuristic, one must admit that countries that have gone through a period of major conflict are of considerable interest to students of criminal justice. In the course of the conflict atrocities are often committed, which evoke strident calls for ‘justice’, both from the parties to the conflict and, increasingly, from the international community. Much can be learnt by studying these responses and the grand attempts by the international community to make use of ad hoc international criminal tribunals and, more recently, the International Criminal Court as mechanisms for bringing a measure of justice into dealing with the aftermath of the conflicts.

Equally interesting, however, is the impact that major conflict has on the national criminal justice apparatus of the society in which it takes place. The pattern is that legitimacy of the national criminal justice apparatus is undermined and its efficacy greatly reduced. This provides an opportunity for the international organisations, national governments and non-governmental organisations to assist by ‘engaging in capacity building’, while using the opportunity, often from the best of motives, to impose on the post-conflict society their idea about what criminal justice should entail.

The provision of such assistance is never a simple process. The tension between the internal old system and externally driven reforms often provokes substantive debates about underlying principles, which are avoided in less disputed systems. The reform process is influenced not only by the ideas and ideals of the aidgivers, but also by the relative political strength of the parties involved and, crucially, by the existing criminal justice system that may have continued to operate throughout the conflict. The careful student of criminal justice should pay particular attention to this last factor, for in the process of reconstruction much is revealed also about the pre-existing system and the claims that it made, and may continue to make, about embodying universal values of justice.

Dr. Andy Aitchison is that careful student of criminal justice. Bosnia-Herzegovina is the exemplar of a sophisticated society in which a pre-existing criminal justice system with a clear set of values (which were already under partial threat with the demise of Yugoslav socialism) was confronted, after a major conflict, by a large and diverse international aid effort.

The reform, reconstruction and restructuring of the criminal justice field in Bosnia and Herzegovina (BiH) since 1995 has taken place in a specific local historical and political context. This chapter sketches out the most relevant contextual factors from the country's history, concentrating on the period from 1944, when it was reintegrated into a second Yugoslav state, its experience of the disintegration of that state, and the post-war political settlement and structures of government. The context of multiple and overlapping transitions developed in this chapter is key to understanding the ongoing development of criminal justice structures in a country with a highly complex framework of governance. Before locating BiH in the context of the second Yugoslav state, some pertinent features of its pre-1944 history are discussed, below.

A long history of Bosnia would include a period of fragile and emerging statehood in the late medieval period in which the pendulum swings between centrifugal and centripetal tendencies of the kind observed elsewhere by Elias (1994: particularly 195 ff, for the manifestation of this in BiH, see Malcolm 1996: 13–27; Ibrahimagić 1998: 71–76). For parts of this period Bosnia was a multiconfessional society, and Catholic, Eastern Orthodox and domestic variants of Christianity were found at Court (Malcolm 1996: 17, 23, Fine 2002: 4), but the combination of the absence of a unifying Church and a mountainous landscape contributed to localism, instability, and vulnerability to external intervention (Fine 1987: 454). Pressed by competing interests, particularly the Hungarian Kingdom to the north and the expanding Ottoman Empire to the south, Bosnia and Herzegovina were fully incorporated into the latter upon the fall of Jajce in 1528, but continued to exist as a territorial unit until 1929 when, as part of the Kingdom of Yugoslavia, it was divided across four Banovine. These divisions were revised in 1939, and during the course of the Second World War (1941– 1944) BiH was divided again, this time between zones of Italian and German interest within the German sponsored Independent State of Croatia (NDH). Only in the founding stages of Yugoslavia's second historic manifestation did Bosnia and Herzegovina regain territorial recognition as one of the country's six constituent republics (see map 2.1).

The problems facing the police forces of Bosnia and Herzegovina (BiH), outlined in chapter 3, presented a considerable challenge to the development of a stable and democratic state in which all citizens enjoyed equal access to security and justice. This chapter examines three particular attempts to address these problems. A large number of organisations have been active in police reform in BiH: thirteen of the twenty agencies included in an Office of the High Representative (OHR) matrix of criminal justice reform initiatives were active in police reform in 2004 (see in appendix 2). The work of each agency is not always easy to isolate as numerous organisations work together on shared projects or inherit mandates from one another. This chapter first examines major multilateral civilian police missions, under the auspices of the UN and EU been active in BiH since the earliest days of the peace. Following this, work commissioned by the UK Department for International Development (DFID) will be examined as an example of small scale, bilateral assistance, guided by a developmental agenda. Finally, the chapter will turn to the Police Restructuring Commission (PRC), a body that combines local and international representatives, and whose work has been supported by OHR and the European Commission. In no way does this exhaust the range of interventions in post-war policing in BiH; for example the European military mission, EUFOR, supports local law enforcement agencies in tackling illegal logging, locating illegal weaponry, and addressing organised crime. By examining these three particular cases of intervention, the chapter aims to provide a certain contrast of contexts, placing major multilateral projects alongside smaller bilateral schemes, and by placing projects developed in a framework of development and peace building alongside those linked into other policy goals, particularly European integration. A closing discussion draws on these to explore developments in BiH in terms of democratisation, state-building, and the nature of the intervening organisations.

CORE CIVILIAN MISSIONS AND THE POLICE IN BOSNIA AND HERZEGOVINA

The General Framework Agreement for Peace (GFAP), introduced in chapter 2, provides for an International Police Force under the auspices of the United Nations.

In exploring the field of criminal justice, there are a number of reasons to turn first to the police. The police are likely to be the first or only point of contact between the public, whether as victim or suspect, and criminal justice agencies. Moreover, the police are the most visible element of the field: they operate amongst the public on a daily basis while clearly marked out by uniforms and other signifiers. On an institutional and conceptual level, the police are distinguished from other criminal justice agencies. The police are generally accountable to ministries of public safety, security or the interior, while courts and prisons answer to ministries of justice (Brodeur and Shearing 2005: 381). The names of these ministries suggest a conceptual distinction separating the work of police from that of courts and prisons. The police handle matters of order and security, while the courts and prisons decide upon questions of justice and enact those decisions. The concepts of security and justice are not easily reconciled, thus the police stand adrift of other criminal justice agencies. Across the next two chapters, the position of police in Bosnia and Herzegovina (BiH) is explored in relation to the specific nature of the transition in BiH, the reconstruction of the nascent Bosnian state, whose development was halted by conflict, and the development of democracy. This will involve three main stages. In the first, questions of police, state and democracy are considered, in relation to the existing literature. Following on from this, the situation in BiH at the close of the war, and in the years immediately following, is considered, locating the police in terms of legacies from Yugoslav government, the war, internal developments and shifts in the external environment in which they operate. Finally, chapter 4 handles efforts on the part of various international agencies to respond to these legacies. Some features outlined may be specific to BiH, but others will be seen to resonate with experiences in countries which have gone through periods of authoritarian rule, conflict, or both.

STATE, DEMOCRACY AND POLICE

The word police reveals a close relationship between organisation, state and government: the etymology of the word goes back to the Greek polis (πόƛις), the city state; the archaic meaning of the verb is to govern; while modern usage conveys a sense of control, regulation, order, and the maintenance of state law.

A matrix, produced and regularly updated by the Office of the High Representative (OHR), summarised in appendix 2, lists twenty agencies engaged in rule of law and criminal justice reform projects in Bosnia and Herzegovina (BiH) in August 2004. Of these, sixteen were involved in working on reform and reconstruction of the courts and associated structures in BiH. The level of involvement of the international community is indicative of the importance that is placed on the courts in the post-war reconstruction of BiH. Figure 6.1, below, gives some indication of the level of OHR interventions in the field of judicial reform. From the commencement of the High Representative's executive ‘Bonn Powers’ in 1997 to the start of 1999, no decisions were taken with reference to the judicial system, and from 1999 to 2001, a total of just fourteen decisions out of 230 (6 per cent) relate to the judicial sector, including the decision to enact a law on a state court, discussed below. Yet the following years see a large increase in both the absolute number and overall proportion of decisions in this area.

What this makes clear is that from a relatively slow start, OHR involvement in the judicial sector has increased, and was maintained from the closing weeks of Wolfgang Petritsch's mandate throughout that of Paddy Ashdown.

These OHR interventions built on the ongoing assessment of the judicial system in BiH carried out under the auspices of the UN between 1998 and 2000. This chapter examines a package of three major transformations in the courts of BiH, each carried out by mainstream civilian missions, particularly OHR and Independent Judicial Commission (IJC). The first is a restructuring exercise across all courts of BiH other than the minor offence courts. This merged a number of courts within each of the two entities and introduced a state level criminal jurisdiction. The second, accompanying restructuring, is formed by two stages of procedures to remove unsuitable judges and prosecutors. Suitability was assessed in terms of a range of factors including legal qualifications, evidence of political bias, and misconduct in office. The first stage involved an internal review process carried out by judges and prosecutors themselves. This was followed by a reappointment procedure whereby sitting judges and prosecutors applied for jobs in an open competition.

INTRODUCTION

The past century's experiences of armed conflict demonstrate that horrific violence does not appear out of the blue: communication through the mass media plays an essential part in the process of initiating and sustaining armed conflict. The role of the Rwandan media in the 1994 genocide, with their dehumanizing depiction of Tutsis as ‘cockroaches’ and their inciting remarks (‘let's exterminate them’) is one of the most widely known examples. As the International Criminal Tribunal for Rwanda found in its Media case judgment, ‘…if the downing of the plane was the trigger, then RTLM, Kangura and CDR were the bullets in the gun. The trigger had such a deadly impact because the gun was loaded’. In other types of conflicts, such as those involving terrorist violence, inciteful speech is also regarded as a meaningful triggering force.

Notwithstanding the potential dangers of speech, the fundamental right to freedom of expression demands a careful approach to speech restrictions. In the framework of the European Convention on Human Rights (ECHR), Article 10 lays down the right to freedom of expression and the criteria for interfering with this freedom.

So far, the cases on extreme speech in conflict situations that have been put before the European Court of Human Rights (ECtHR) mostly deal with terrorist violence in south-east Turkey; these judgments focus on incitement against the State and/or dominant forces in society instead of ‘traditional’ hate speech against minorities. Yet it is also essential to have a look at a number of cases involving hate speech against minorities outside armed conflict, since racist and xenophobic expressions are regarded as factors that could lead to future conflict. The Court's approach to such speech still bears witness to the coming into being of the Convention as a reaction to the Second World War, as will be demonstrated below. The ECtHR's case law shows that both types of expressions – against the State/majority and against minorities – can fall under the heading ‘hate speech’. Furthermore, this chapter will briefly delve into expressions about past conflicts such as denial or justification of grave violence.

The European Convention on Human Rights (ECHR) was draft ed more than 60 years ago, in the wake of World War II and in the midst of fears that communist dictatorship would gain firmer ground in ever increasing parts of Europe. The Court has functioned for over 50 years as a guardian of the ‘engagements undertaken by the High Contracting Parties in the Convention’, as Article 19 ECHR so succinctly formulates it. The dark shadows of war have not fully receded however. Although the State Parties to the Convention have for the most part experienced unparalleled decades of peace, armed conflict has resurged time and again, from Northern Ireland to Cyprus and Turkey, but also beyond the territories of the State Parties to the ECHR. And with the demise of the communist regimes in Central and Eastern Europe in the 1990s new waves of violence devastated parts of Europe, most violently in the States of the former Yugoslavia and in the Caucasus. Human rights, such as those enshrined in the European Convention, have not brought about the end of wars, but they have contributed to the strengthening of peace and they offer a myriad of tools to counter armed conflict and to deal with its aftermath.

This edited collection arose from a seminar held at Utrecht University in October 2009 under the aegis of the research focus on conflicts and human rights, in which both legal scholars and academics from other disciplines cooperate. Its aim was to address some of the salient issues regarding the use of the European Convention in periods of tension, which could both involve transitions from peace to armed conflict and vice versa. It thus adheres to a broad conception of transitions, which do not always concern the often-researched transition from war to peace but also the other way around. This reflects the reality in many States which oscillate between war and peace. It is important to emphasize that this volume does not focus on the period of armed conflict itself, with its particular connection of human rights to humanitarian law – such a topic would merit a book of its own. Rather it studies the margins of conflict, as the title of this volume indicates.

INTRODUCTION

The 50th birthday of the European Court of Human Rights in 2009 was of course a time for celebration, but at the same time, and perhaps most importantly, a time for reflection. This reflection is not just called for in relation to the general functioning of the Court and its future as a whole, but also in relation to one of its ‘daily working tools’, the possibility for the Court to issue so-called ‘interim measures’ or ‘provisional measures’ during its proceedings. These days, ‘provisional measures’ or ‘interim measures’ are a key instrument for international bodies, such as the Inter-American Court of Human Rights or the European Court of Human Rights, to prevent irreparable harm to persons who are in a situation of extreme gravity and urgency. They result generally in some protection offered by the respondent State to the beneficiaries of the requests, in compliance with an order issued by the Court, which may act at the request of a party or on its own motion. In the European system, the interim measures are not regulated in the European Convention itself, but exclusively in the Rules of the European Court:

In Article 39(2) of the Rules of Court it is stated: ‘Notice of these measures shall be given to the Committee of Ministers.’ The Committee of Ministers of the Council of Europe is indeed kept informed of the interim measures in light of its competence to supervise their implementation. Finally Article 39(3) states: ‘The Chamber may request information from the parties on any matter connected with the implementation of any interim measure it has indicated.’ The Chamber has indeed done so on many occasions. The Rules of Court are supplemented by a Practice Direction on provisional measures, issued by the President of the European Court, in which useful guidance is given with regard to the procedure to be followed when requesting such measures.

WAR, NEVER AGAIN. NO PEACE WITHOUT HUMAN RIGHTS

Immediately after World War II there was a hope that it might be possible to permanently prevent war and the attendant atrocities in the future. This is reflected in the Charter of the United Nations of 1945, which was intended, in the first place, ‘to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind, and to reaffirm faith in fundamental human rights, in the dignity and worth of the human person, in the equal rights of men and women and of nations large and small …’. The Universal Declaration of Human Rights (1948) takes these ambitions further: ‘Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law …’.

At the universal level, these aims were elaborated in the Universal Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights (1966). At the European regional level, they were first made tangible by the Statute of the Council of Europe (1949) and the European Convention on Human Rights (1950), later joined by the European Social Charter (1961, revised 1996).

DID THIS SUCCEED?

More than 60 years after the Universal Declaration (1948), in the year of the 60th anniversary of the Statute of the Council of Europe (1949) and the 50th anniversary of the European Court of Human Rights (1959), this Annual SIM1 Lecture offers a good opportunity to review the European balance and make some comments about whether this hope came true. At the world level it is clear that after World War II, war never ended. The number of (civil) wars and atrocious hostilities between peoples seems undiminished, if not increased. Moreover, Europe has not been spared its share of conflict and oppression since 1945. It is possible to see the presence of the Soviet Union in Eastern and Central Europe (until 1989) in such a light. During this time, Europe witnessed the brutal repression of popular uprisings in East Germany (1953), Hungary (1956) and Czechoslovakia (1968).

INTRODUCTION

THE SUBJECT OF THIS CONTRIBUTION FROM A HISTORICAL PERSPECTIVE

The one provision in the European Convention on Human Rights (ECHR) most explicitly focusing on crisis situations is Article 15. This Article provides for the derogation of certain Convention rights during times of war or other public emergency. In this contribution the way the European Court of Human Rights is supervising the use of this derogation clause by the Contracting States is analyzed. How did the Court interpret the separate provisions of this Article? Which level of scrutiny did it apply? And, does this interpretation and level of scrutiny affect the European human rights protection in the post-9/11 era?

From time immemorial governments have tried to come to an organized response to crises, political violence or acts of terrorism in the form of emergency rules or the implementation of a state of emergency. The solution has often been found in assigning special powers to the (head of the) Executive, in appointing a special official to cope with the emergency situation (e.g. the Roman dictatorship) or in transferring civil powers to military authorities (e.g. the British martial law and the French état de siège). History shows that from the earliest development of emergency regimes, these regimes provide for the infringement of the rights and freedoms of citizens: at first mainly the infringement of property rights and the deviation from the normal system of justice, later also the infringement of other rights. Actually, the manner in which the dictatorship in the Roman Republic was organized has long been taken as an example of a good set of rules for states of emergency. This is because of its fairly strictly formalized, controlled and time-limited nature which preserved, as much as possible, both the return to ordinary governmental structures and the liberty of individuals. This appreciation for the Roman dictatorship has also influenced the way in which the derogation clauses in post-World War II constitutions and in human rights treaties like the ECHR and the International Covenant on Civil and Political Rights (ICCPR, which contains a derogation clause in Article 4) have been structured and interpreted.

INTRODUCTION

To what extent does the European Convention on Human Rights (ECHR) apply to armed conflict? The overwhelming majority of complaints before the European Court on Human Rights relates to incidents in otherwise peaceful situations: undue delays occurring in civil proceedings, decisions to place children into public care or disputes concerning the presence of crucifixes in State schools, for example. One might therefore be inclined to assume that the ECHR standards are not designed for the rough circumstances of warfare. And indeed, they are not suited: decades of careful tendering by the Strasbourg judges have resulted in rights that are simply too delicate for the battlefield. The realities of war have led to the development of a separate branch of law, i.e. international humanitarian law, which has clear similarities to human rights law but is specifically designed to protect the vulnerable in situations of large-scale violence.

On the other hand, the text of the Convention does not reserve human rights for situations of peace and stability. Quite the opposite: the very existence of Article 15 ECHR, which allows for derogations in times of war or public emergency, shows that the drafters presumed that the Convention would continue to apply in situations of armed conflict. Indeed, in actual practice the Strasbourg judges have not been confined to a haven of brotherhood and tranquillity. It depends, of course, on our understanding of what is an ‘armed conflict’, but arguably the very first case before the Strasbourg Court – Lawless v. Ireland – was exactly about the significance of the Convention in a sometimes very violent situation. Since then, the troubles in Northern Ireland, the conflict between Turkey and the PKK, and the Chechen wars in the Russian Federation have given rise to extensive case law.

Against this background, the present contribution will focus on a sub-species of Strasbourg case law. Luckily – for us, that is – conflicts tend to occur outside the territories of the 47 Member States of the Council of Europe. May we assume that the Convention continues to bind the Member States when they become involved in ‘out-of-area conflicts’? Or is it ‘out of sight, out of mind’? The wellknown case of Bankovic (2001) offered a first occasion for the Strasbourg Court to address this question in considerable detail.