By Dr Olga Martin-Ortega (University of East London, Centre on Human Rights in Conflict) and Iva Vukusic

Over 300 participants; academics, practitioners, ICTY judges, prosecutors, defense lawyers as well as representatives of national judiciaries gathered in The Hague last November to examine the global legacy of the International Criminal Tribunal for the former Yugoslavia (ICTY). The discussions throughout the conference, organized by the ICTY, were self-congratulatory, lacking in constructive criticism.

This was an opportunity to take stock of all the achievements of the ICTY, accomplishments made at times against all odds. Today, this is a court that has no fugitives left, it has conducted proceedings in relation to 161 persons and, little by little, it is approaching the end of its mandate. Two more trials, for the last fugitives caught – Ratko Mladic and Goran Hadzic are yet to begin.

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We are please to announce the publication of a new article by our colleague Dr Juan Garcia-Blesa, Juan  Assistant Professor in Comparative and International Law at the American University in Bosnia and Herzegovina, Sarajevo.

The abstract reads as follows:

Promotion and even direct implementation of rule of law in conflict and post-conflict societies, as defined by the UN Secretary-General in 2004-2006, have actually become core activities of the United Nations during the last decades. These tasks are normally entrusted to international administrations that exercise a number of legal competences in the field embodied in their international mandates. The OHR in Bosnia has been mandated to guarantee that full compliance with the Dayton Peace Agreement is achieved, including respect for the essential elements of rule of law in this society, as a key condition for long-lasting peace. However, some of the competences of the OHR seem to go far beyond the most basic idea of rule of law. This is the case of the power to vet, dismiss and ban public officials from public life at the OHR’s discretion, in permanent and increasing tension with the due process requirements. This anomaly can be explained by the need for some transitional exceptions to the rule of law in conflict and post-conflict societies. Furthermore, suspensions are provided for by every international human rights system on the grounds of exceptional emergency states (e.g., Articles 4 ICCPR and 15 ECHR). Notwithstanding, there seem to be a common limitation to exceptions in these systems that require them to be temporary. After thirteen years of exceptional rule in Bosnia, could this be the time for revision? Any tentative answer would need a thorough evaluation of the political situation in Bosnia. This paper only attempts to offer some reflections on possibe legal scenarios with regard to this interesting phenomenon of international life.

Reference:  Garcia-Blesa, Juan J., Rule of Law and the Transitional Exception in International Administrations: The Case of the OHR in Bosnia and Herzegovina and the Right to Due Process (January 21, 2011).

Available at SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1744919

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