International Journal of Rule of Law, Transitional Justice and Human Rights Year 4, Volume 4

International Journal of Rule of Law, Transitional Justice and Human Rights, Year 4, Volume 4, January 2014

181 Pages Posted: 19 Mar 2014

See all articles by Thorsten Geissler

Thorsten Geissler

South East European University (SEEU)

Kaja Nanut

University of Ljubljana

Blagoj Conev

Ss. Cyril and Methodius University

Tomas Jungwirth

Charles University in Prague

Rukmani Devi Bhatia

Georgetown University - BMW Center for German and European Studies

Natalija Ferlež

University of Ljubljana

Sean Parramore

Queen Mary, University of London

Sofka Hadzijevska

First Private University (FON)

Elena Spasovska

University of South Australia

Victoria Apostol

National School of Political Science and Public Administration (NSPSPA)

Dusica Kljakic

University of Belgrade

Agnieszka Zygas

Government of the Republic of Poland

Drino Galicic

EU Delegation/EU Special Representative in Bosnia and Herzegovina

Davorin Semenik

Parliamentary Assembly of Bosnia and Herzegovina

Marko Grujicic

University of Belgrade

Date Written: January 4, 2014

Abstract

SEEKING JUSTICE WHILE NEGOTIATING PEACE: An Essay on the (In)Compatibility of Transitional Justice Measures in Peace Negotiations By Kaja Nanut

ABSTRACT: Much of the 'Peace vs. Justice' debate revolves around the question whether transitional justice measures pose an obstacle to peace negotiations and endanger durable peace or the opposite, whether they enable peace negotiations and in the long-term contribute to durable peace in conflict-affected societies. A strong focus on justice can hinder the peace process and fuel conflict, while sacrificing justice in the hope of securing peace can fail to discourage future severe human rights abuses. In this paper I discuss prosecuting war crime suspects through national and international courts while negotiating peace and consider the legitimacy of measures associated with abstaining from post-conflict justice, such as amnesty and exile.

EUROPEANISATON OF THE BALKAN NATIONS: Institutional Reforms and Ethnic Problems By Blagoj Conev

ABSTRACT: This paper aims to explore the institutional reforms and ethnic problems in the slow transitional process and Europeanization of the countries from Southeast Europe. As a result of the ethnic conflicts, economic backwardness and political incompetence in the past two decades the region has become symbol of the conflict-prone and uncivilised part of Europe.

(IN)EFFICIENT USE OF INTERNATIONAL LAW: Case Study of the Dayton System in BiH By Tomáš Jungwirth

ABSTRACT: This paper aims to analyse the existent legal and political system of Bosnia and Herzegovina from the viewpoint of effective applicability of international law. It first deals with the general issue of the relationship between international law, domestic political structures and the individual, consequently moving to the specific case study of the Dayton system. The question arises whether such an excessive intervention was at all capable of establishing a stable institutional framework and of uprooting the enmities between the sides to the conflict. Certain criteria for the effective application of international law are drafted, in light of which the presented data are evaluated. A critical conclusion follows, defining the key setbacks of the Dayton system and hinting to possible alternative approaches.

INSTRUMENTS OF WAR, PEACE AND JUSTICE: The Transformation of Women’s Bodies During the Bosnian War By Rukmani Devi Bhatia

ABSTRACT: Gendered violence within conflicts has occurred throughout human history and the Bosnian War (1992 – 1995) was no exception. The systematic use of war rape implemented by the ethnically Serbian soldiers was a tactic designed to torture, terrify, and traumatise Bosniak women and their communities. Following the end of the conflict, the international community responded strongly to the extensive use of sexual violence and the International Criminal Tribunal of the former Yugoslavia declared that the use of rape during conflict was a crime against humanity and that individual perpetrators of militant rape could be charged for committing gender-based war crimes in landmark cases like the joint trial of Dragoljub Kunarac, Radomir Kovac, and Zoran Vuković.

ETHNIC SEGREGATION INSTEAD OF CIVIC INTEGRATION AS AN OBSTACLE TO A TRANSITIONAL JUSTICE IN BOSNIA-HERZEGOVINA: Special Focus on the Recent ‘JMBG Protests’ and Their Potential to Bring a Change in Still Ethnically Divided Country By Natalija Ferlež

ABSTRACT: Transitional justice that represents a response to massive and systematic violations of human rights with the goal to promote reconciliation, peace and democracy, is today considered as an international norm that has so far been applied in many post-conflict societies. However, it seems that the process never achieved its goals in Bosnia-Herzegovina. On the contrary, a political system based on ethno-territorial divisions, ethnically determined political participation and excessive prevalence of collective rights over individual rights, was created. The article states that such political framework is preserving a situation that is exactly the opposite of what the transitional justice is seeking to achieve – it reinforces ethnic segregation, distrust among people and it institutionalises human rights violations. In this respect, the recent JMBG protests are analysed. The author argues that the protests show that the political mobilisation across ethnic boundaries in Bosnia-Herzegovina is possible. Moreover, it shows that citizens first of all want to be understood as individuals that have human rights and fundamental liberties, which exist regardless of their membership in a specific ethnic community. Therefore, the protests could be understood as a start of a growing support for a profound reform of a political system that would be based on civic principles and the protection of individual rights and would as such make a first step from separation to integration of a society as well as contribute to the goals of a transitional justice.

AMNESTY FOR NORTH KOSOVO: Peace at Expense of Justice? Politically, Legally and Morally Justifying the Amnesty Law for North Kosovo By Sean Parramore

ABSTRACT: The paper examines the question under what conditions amnesty laws can be justified for the sake of peace, and what those conditions may imply in the case of Kosovo’s amnesty law directed at its northern break-away region. It appraises the moral justifications of amnesty laws, their international legal justification, and the political context and logic behind them so to test the hypothesis that peace at the expense of justice can be justified, in this case through Serbia’s and Kosovo’s integration into the European Union (EU). Amnesty laws are found to be balancing acts between political expediency, moral considerations and the international legal order. In North Kosovo’s case, the law risks undermining an already weak rule of law, exacerbating pre-existing corruption, while failing to resolve tensions between its questionable political expediency, dubious morality and doubtful international legality.

VIOLATION OF HUMAN RIGHTS AND CIVIL FREEDOMS BY ABUSING THE PRE-TRIAL DETENTION AS A MEASURE TO SECURE THE PRESENCE OF THE ACCUSED IN THE CRIMINAL PROCEEDINGS By Sofka Hadjijevska

ABSTRACT: Guaranteeing and respecting the fundamental human rights and freedoms is one of the foundations on which one independent, sovereign and democratic state should be based. As a matter of fact, human rights and freedoms are the foundation, the core of the value system in the democratic state. However, despite the aspiration to respect human rights, the organs and institutions of the government, deliberately or inadvertently, violate them without being accountable for their actions. Therefore, in this paper we will focus, precisely on the violation of human rights by the abuse of the pre-trial detention as a measure to ensure the presence of the accused in the criminal proceedings. The need for the elaboration of this paper has emerged from the treatment and the use of pre-trial detention in the Macedonian judiciary because judges often decide to apply this measure in most cases, while not taking into account the basis for imposing, and the possibilities of applying other measures that will equally achieve the goal – ensuring the presence of the accused in the criminal proceedings. In that respect, it could be stated that the pre-trial detention is often abused by the Macedonian courts, which suggests violation of basic human rights and freedoms on one hand, and throws doubt on whether there is a rule of law in the real sense, on the other. Hence, the purpose of this article is to elaborate the key role of pre-trial detention in criminal proceedings, and to provide guidelines for its successful application in accordance with domestic and international legal standards and respect for human rights.

WOMEN, PEACE AND SECURITY IN THE REPUBLIC OF MACEDONIA: Advances and Challenge By Elena Spasovska

ABSTRACT: This essay aims to contribute to the current debate regarding women, peace and security. The international political and academic community is increasingly becoming aware of the critical role that women play in building peace in conflict and post-conflict societies. However, women’s peacebuilding activities are generally located in the informal sector and are lacking visibility and social recognition. The UN Security Council Resolution is watershed documents that empowers women and recognises and promotes women’s role in peacebuilding on formal and informal level, locally and globally. After offering a general overview of the connections between women and peace and the UNSCR 1325, the essay will concentrate on the advances and challenges in promoting women within the peace and security agenda in the Republic of Macedonia.

THE ABSENCE OF TRANSITIONAL JUSTICE IN THE REPUBLIC OF MOLDOVA By Victoria Apostol

ABSTRACT: Transitional Justice represents an insignificant subject for societies in transition. It is a large process which involves different actors and interests. The situation of transitional justice in the Republic of Moldova shows how the relationship between these two components (actors and interests) can influence (negative or positive) the entire process. This paper will address Moldova’s case of transitional justice as an ex-Soviet republic. The soviet heritage plays an important role within Moldova’s society. Its presence keeps certain memories alive in order to present only the convenient truth for some categories of people. Therefore it is important to problematise the absence of transitional justice in the Republic of Moldova and to identify the main causes of this aspect.

EUROPEANISATION OF PUBLIC ADMINISTRATION IN SERBIA By Dušica Kljakić

ABSTRACT: Europeanisation is a process through which every country that wants to join the European Union should pass. T. Risse, M. Green Cowles and J. Caporaso defined Europeanisation as an impact of European integration on domestic political and social process. Europeanisation is a wide concept that applies to many sectors, but in this paper, the main focus will be on Europeanisation process in the field of public administration in Serbia. Serbia became a candidate state for the accession in the European Union in 2012. The aim of this paper is to show the process of the public administration reform in Serbia after the revolution in 2000. It is important to examine the main problems, obstacles and challenges regarding this case. Since there in no unique model of public administration in the European Union, it is more difficult for candidate countries to find their own model of functional and efficient administration.

THE LEGAL STATUS AND INVESTIGATIVE FUNCTION OF THE INSTITUTE OF NATIONAL REMEMBRANCE – Commission for the Prosecution of Crimes against the Polish Nation (IPN) under the rule of law By Agnieszka Żygas

ABSTRACT: The Institute of National Remembrance - Commission for the Prosecution of Crimes against the Polish Nation (hereinafter referred to as “the IPN” or “the Institute”) is a research institute affiliated with the Polish government, with vetting prerogatives and prosecution remits. It deals with the fifty years of the Polish nation history, from 1939 until 1989, a period of unprecedented changes. The IPN investigates both: Nazi and Communist crimes committed in Poland in that period, documents its findings and disseminates the results of its investigations to the public. The Institute was established under the Act on the Institute of National Remembrance by the Polish Parliament on 18 December 1998 and started its activities on 1 July 2000. However, this Act was amended many times in order to guarantee its full conformity with the principles of democratic society, in particular with the rule of law. This essay seeks to analyze compliance of the legal status and investigative function of the IPN with this rule.

BUILDING (UN)STABLE JUDICIARY: RULE OF LAW CONDITIONALITY AS UNDERSTOOD BY THE WESTERN BALKAN AND EU ELITES By Drino Galicic

ABSTRACT: This paper reveals the impact of EU conditionality on rule of law development in different countries of the Western Balkans, one of them being the most recent member state (Croatia), one candidate country (Serbia) and one potential candidate (Bosnia and Herzegovina). By distinguishing between two tiers of rule of law, the comparative and indicator-based analysis generates one key finding: while EU-driven judicial reforms led in most countries to the relative progress in the efficiency-related aspect of rule of law (e.g., increasing professional capacity, modernizing the courts, reducing the length of proceedings etc.), their impact on the separation of powers (allowing for judicial independence and accountability) was critically weak. In conclusion, such a development of change did not translate in the stability of institutions guaranteeing the rule of law in the region even this has been set as criteria for EU accession under the 1993 Copenhagen Declaration.

REFLECTION: LEGISLATING FOR GENDER EQUALITY IN ELECTION LAW OF BOSNIA AND HERZEGOVINA By Davorin Semenik ABSTRACT: In this article, I will try, from the point of view of the secretary of the Committee on gender equality of the Parliamentary Assembly of Bosnia and Herzegovina, to present my opinion on the issue how the Election Law of Bosnia and Herzegovina, in the last decade, affected the realization of the gender equality on the political scene which means in both representative and executive power bodies in Bosnia and Herzegovina.

DECENTRALIZATION OF SERBIA Does Serbia need regions? By Marko Grujicic ABSTRACT: By analyzing different state forms existing on the territory of modern Serbia in the last hundred years, it could be concluded that Serbia has experienced different forms of decentralization. These forms vary from time to time, while in the last forty five years territory of Serbia has been experiencing asymmetric autonomy which leads to unequal status of its citizens who live in different parts of the country. Even the latest constitution, adopted in 2006, has retained asymmetric autonomy which produces difficulties to define type of state organization of Serbia, officially being unitary state. On the other hand, it is to be realized that Serbia is a country with the biggest regional discrepancies in Europe, which per se draw further problems such as bad infrastructure, low living standard, and demographic migration to the capital city. This paper will try to answer to the question posed in its title i.e. Does Serbia need regions? considering that there still have been some opinions which strictly opposed such solution. To that effect the paper will present common definitions of decentralization and region as well as analysis of solutions adopted in Serbia and provided in valid documents regarding decentralization and regionalization. Furthermore, the paper will give insight into the arguments which oppose regionalization as well as contra arguments which advocate regionalization and more precisely, political-territorial model of regionalization. Within such model of regionalization, briefly explained is in this paper, it is a task of intellectuals and scholars to find, through their debates, the best possible solution for Serbia. Finally, the author argues that Serbia should conduct process of political-territorial regionalization which would be the best possible option for the country to develop economically.

Suggested Citation

Geissler, Thorsten and Nanut, Kaja and Conev, Blagoj and Jungwirth, Tomas and Bhatia, Rukmani Devi and Ferlez, Natalija and Parramore, Sean and Hadzijevska, Sofka and Spasovska, Elena and Apostol, Victoria and Kljakic, Dusica and Zygas, Agnieszka and Galicic, Drino and Semenik, Davorin and Grujicic, Marko, International Journal of Rule of Law, Transitional Justice and Human Rights Year 4, Volume 4 (January 4, 2014). International Journal of Rule of Law, Transitional Justice and Human Rights, Year 4, Volume 4, January 2014, Available at SSRN: https://ssrn.com/abstract=2404624

Thorsten Geissler (Contact Author)

South East European University (SEEU) ( email )

Ilindenska nn
Tetovo, 1200
Macedonia

Kaja Nanut

University of Ljubljana ( email )

Dunajska 104
Ljubljana, 1000
Slovenia

Blagoj Conev

Ss. Cyril and Methodius University ( email )

Skopje
Macedonia

Tomas Jungwirth

Charles University in Prague ( email )

Celetná 13
Praha 1, 116 36
Czech Republic

Rukmani Devi Bhatia

Georgetown University - BMW Center for German and European Studies ( email )

Washington, DC 20057
United States

Natalija Ferlez

University of Ljubljana ( email )

Dunajska 104
Ljubljana, 1000
Slovenia

Sean Parramore

Queen Mary, University of London ( email )

Lincoln's Inn Fields
Mile End Rd.
London, E1 4NS
United Kingdom

Sofka Hadzijevska

First Private University (FON) ( email )

Str. Vojvodina b.b.
Skopje, 1000
Macedonia

Elena Spasovska

University of South Australia ( email )

37-44 North Terrace, City West Campus
Adelaide, South Australia 5001
Australia

Victoria Apostol

National School of Political Science and Public Administration (NSPSPA) ( email )

Strada Parcului
Bucharest
Romania

Dusica Kljakic

University of Belgrade ( email )

Studentski trg 1
Belgrade, 11000
Serbia

Agnieszka Zygas

Government of the Republic of Poland ( email )

Poland

Drino Galicic

EU Delegation/EU Special Representative in Bosnia and Herzegovina ( email )

Skenderija 3a
Sarajevo, 71000
Bosnia and Herzegovina

Davorin Semenik

Parliamentary Assembly of Bosnia and Herzegovina ( email )

Sarajevo
Bosnia and Herzegovina

Marko Grujicic

University of Belgrade ( email )

Studentski trg 1
Belgrade, 11000
Serbia

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