INTRODUCTION

When the long and brutal war in Bosnia and Herzegovina finally ended in 1995 with the conclusion of the Dayton Peace Agreement (DPA), the country was in tatters. One of the many challenges facing post-war Bosnia was the establishment of a legal system based on the rule of law. This (re)building, from a human rights perspective, was characterised by three particular features. First, the key normative framework was the European Convention on Human Rights (ECHR), with which the Bosnian legal system was not familiar at all. Secondly, that treaty was not particularly geared towards the specific conflict-related problems Bosnia was facing, such as large-scale displacement and expropriation. Thirdly, the judiciary itself had, just as most of the power structures within the country, become divided along ethnic lines as a result of the war. Many citizens did not think of the country's courts as being impartial or independent.

In order to tackle these problems a sui generis court was created as part of the DPA: the Bosnian Human Rights Chamber. The Chamber was, in the first place, meant to cement effective supervision of the warring parties’ new human rights obligations into the Bosnian state structure. In practice, however, it also served a second function: the Chamber became a judicial translator of norms in applying general international human rights law, preponderantly the ECHR, in a tailormade fashion to the particular Bosnian post-conflict context. Its case law and practice in many ways incrementally embedded those external, international norms in the domestic legal order. The very existence of a new human rights institution and the direct applicability of international norms could, moreover, serve as points of connection for domestic judges and officials who were willing to strengthen the rule of law.

As a mixed institution, with both domestic and international elements, the Bosnian Human Rights Chamber provides a revealing case study on the ways in which international law can be applied nationally in post-conflict states. In order to assess how the Chamber inserted the legal Fremdkörper of international human rights in Bosnian practice, this chapter will look at how the Chamber interpreted and applied several substantive ECHR rights: the protection of property and housing rights.

INTRODUCTION

Societies emerging from a long period of armed conflict often lack a judicial tradition that complies with international notions of the rule of law and respect for human rights. When local regulations and policies openly defy such principles, it is sometimes necessary to take recourse to international human rights law to re-establish the rule of law. The problem with such an approach, however, is that international human rights standards are not specifically geared towards the needs and challenges of post-conflict societies. Such standards are often too general, without providing specific and comprehensive guidance on such salient issues for post-conflict situations as property restitution or the provision of other effective remedies and reparations. Thus a judicial intermediary seems to be called for to interpret international norms in the light of local conditions. In this regard, the most obvious actors to perform such task would be national judges. However, in the immediate post-conflict phase national judicial mechanism are often either not functioning or heavily tainted by their links to one of the warring parties. Thus both their effectiveness and legitimacy are, more often than not, weak. Some kind of mixture between purely local and purely international justice – both in composition, legal basis, and normative standards – could possibly counter the disadvantages of the two extremes. Such a mixed or hybrid institution would offer stronger guarantees of independence and impartiality than national judiciaries. At the same time, it would have the potential to safeguard the local embeddedness of such an institutionalized attempt to re-establish the rule of law. This local element increases the long-term viability and effectiveness of such a process towards compliance with the rule of law.

Hybrid institutions have emerged since the 1990s mainly in the context of criminal law, for example in Sierra Leone and Cambodia. These institutions were created precisely to avoid the problems mentioned above of both purely domestic and of completely detached international mechanisms of rendering justice. Such hybrid criminal law institutions are increasingly perceived as key components in addressing the problems of post-conflict societies. However, little attention, both in practice and academia, has been paid to hybrid human rights institutions in the post-conflict phase. This is all the more surprising since one of the first hybrid judicial mechanisms of the 1990s – the Human Rights Chamber in Bosnia and Herzegovina – was a human rights mechanism and not a criminal law institution.

This assertion from the dissenting opinion of Judge Bonello in the Sejdić and Finci case of 2009 illustrates that there is discussion within the European Court of Human Rights on the Court’s role in transitions. Obviously, the situation at hand – the continuously tense aftermath of the bloody and traumatic war in Bosnia and Herzegovina – might be a very extreme example, but the wider salience of Judge Bonello’s remark should not be ignored. This book set out to question and analyse to what extent the European Court has developed a specific transitional jurisprudence. By looking at a broad range of issues – from freedom of religion to property rights and from the right to free elections to freedom of expression – a diversified picture emerges. This chapter draws together common threads from the preceding contributions and overviews the different settings in which arguments from transition have been permitted or denied.

Introduction

‘Frankly, I do not believe that the fascist organizations … have any independent existence, outside the state apparatus’, wrote senator Miguel Castells in a magazine published in the Basque Country in 1979. Thirteen years later, as the Iron Curtain which had divided Europe for so long had for the most part been torn down, the European Court of Human Rights dealt with this case which touched upon a much less recent transition from authoritarianism to democracy.

In the article, Castells wrote about a series of unsolved murders in the Basque region. He claimed that the authorities refused to investigate who the murderers were and even asserted that the government was quite certainly behind these acts. It can be added that Castells??? article was published in a period which also marked the apex of ETA terrorist activity. The Basque Country was in a situation of turmoil, whereas Spain itself was tentatively trying out democracy after the first multi-party elections and a newly approved constitution in the previous years. In this context the state apparently deemed the article by Castells, a senator for the opposition, so dangerous that it had him prosecuted. He was convicted for insulting the government, by a court mostly consisting of judges appointed during the Franco regime. Subsequently, he took his case to the European Convention institutions in Strasbourg. The European Court of Human Rights found a violation of his freedom of expression.

This book is concerned with the role and contribution of the permanent regional judicial mechanisms – in Europe, Africa and the Americas – to improving human rights compliance in societies emerging from conflict or authoritarian rule. Many studies have contrasted the approaches of constitutional courts in such settings, or the ad hoc and sometimes quasi-judicial mechanisms instituted to navigate transitional obstacles. With few exceptions, however, there has so far been little recognition that the jurisprudence of these regional institutions is profoundly shaping and enriching the law of transitional justice. As critical sites of transitional normativity, the case law of the regional commissions and courts – particularly the European Court of Human Rights – deserves close attention.

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 anniversary of the European Court of Human Rights this year is an occasion for both celebration and apprehension. The Court started functioning in 1959 as the heart of the Council of Europe, an organization set up after World War II to protect democracy against dictatorship and thereby to avoid the recurrence of the massive human rights violations of the war. From a timid beginning the Court has grown into a full-time institution, successfully dealing with thousands of cases each year. Its case law is generally perceived to be among the most developed and extensive of all international human rights institutions and most of its judgments are routinely implemented by the State Parties to the European Convention on Human Rights (ECHR).

However, for over a decade dark clouds have been gathering above Strasbourg. First, the number of applications has been rising so sharply – partly due to the accession of a large number of new State Parties to the ECHR – that the very work and survival of the Court seems to be at risk. As one scholar has put it, the Court is fighting with its back to the wall. Secondly, after decades of adjudicating peace-time human rights problems, the Court has since the 1990s been starkly reminded of the issues which for long seemed to belong to the past. Armed conflicts in the Balkans and the Caucasus have brought cases to Strasbourg concerning arbitrary killings, enforced disappearances, destruction of housing, and large-scale displacement. The two problems have one thing in common: their high numbers. It is precisely because of these numbers that the Court has started to deal creatively with massive violations of human rights by way of so-called pilot judgments. This article will specifically assess whether pilot judgments can be a useful tool to deal with large-scale violations as a result of armed conflict. First, it will look at what pilot judgments are and in which cases the Court has applied the pilot methodology. Secondly, the main reasons for setting up the pilot judgment procedure will be considered. Thirdly, this article will analyze the problems of the pilot procedure, such as its legal basis and the position of applicants in comparable cases.