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.

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.

INTRODUCTION

Conflict situations, whether national or international, often go hand in hand with gross human rights violations. In fact, gross human rights violations occur most often in situations of conflict. One such violation is that of enforced disappearance. An enforced disappearance is the act by State agents, or with the indirect involvement of the State, of depriving someone of his liberty while at the same time denying this act or refusing to give information on the whereabouts or fate of this person. As a result, the person is outside any control other than that of the State authorities who detained him. One of the reasons why conflict situations are prone to enforced disappearances is that it is an effective instrument to eliminate opposition while at the same time creating unrest, fear and anguish among the population. Another reason is that this human rights violation generates impunity for the act. These consequences result from the very nature of an enforced disappearance, which is escaping accountability by cloaking the act in complete secrecy and intending to leave no traces of evidence behind. As a result, the perpetrators are hardly traceable. Establishing responsibility in conflict zones is even more challenging since many different actors, such as the State, groups acting with the acquiescence of the State, and belligerent groups may commit human rights violations or acts similar to such violations. As a consequence, the required standard of proof is difficult for relatives to attain. At the same time, it does not matter in essence for either the relatives of the disappeared or the victim himself who exactly is the perpetrator; the suffering and anguish is grave. The situation is aggravated significantly when the State authorities refuse to act diligently in their efforts to search for the disappeared person and bring the perpetrators to justice.

Enforced disappearance cases have come before the European Court of Human Rights (hereinafter: the European Court, or the Court) in respect of two countries: Turkey and Russia. The vast majority of these cases originated in the conflict zones of south-east Turkey and of Chechnya, respectively.

Burundi's post-colonial identity has to a large extent been shaped by diff erent cycles of violence. Violence has served as the most important instrument for obtaining, maintaining or exercising political power and, indirectly, for securing access to economic and financial wealth. This is a common theme of the five cycles of violence this chapter distinguishes.

THE 1965 EVENTS

On 13 October 1961, shortly before independence, Prince Louis Rwagasore, Prime Minister of Burundi, was killed. In the view of many observers and analysts, Burundian and foreign, this event has strongly marked Burundi’s post-colonial history of conflict and violence. Rwagasore was the son of Mwami (king) Mwambutsa IV and one of the founding fathers of the Uprona party (Unité et Progrès National, established in 1958). His death should be understood in light of the power struggles among Ganwa, descendants of Mwami Ntare Rugamba (1795–1850). Rwagasore belonged to the clan of Bezi princes, descendants of Mwami Mwezi Gisabo, Ntare's youngest son (who ruled from 1850 until 1908). Ntare's older sons and their descendants were known as the Batare clan, with Pierre Baranyanka as leading spokesperson. The Batare clan also was the main ally of (first) the German colonizer and (later) the Belgian mandatory and administering authorities. In the 1950’s, the old princely rivalries were, in the wake of electoral politics, transformed into an organised political competition through political parties and factions. The main parties were Uprona, representing the Bezi lineages and the monarchy, and the PDC (Parti Démocrate Chrétien), founded by Baranyanka's sons, representing the Batare lineages and strategically supported by the colonial administration. Contrary to the Rwandan situation around the time of independence, the political context in Burundi did not oppose Hutu and Tutsi, but reflected traditional Ganwa rivalries. The first elections, in November 1960, organised at the local level of the municipalities, were won by the PDC. Less than one year later, however, Uprona won the legislative elections of September 1961, winning around 80 of the votes and reflecting a common desire among Hutu and Tutsi to preserve the monarchy and to accelerate Burundi's independence. Rwagasore became prime minister designate. According to Lemarchand, his personal leadership constituted the most valuable asset of the Uprona party. He embodied the link between the Crown and, also because of his charisma, “he gave the party an enormous appeal among the peasantry”.

This chapter will present a largely chronological overview of transitional justice responses to each of the sets of events mentioned above. These responses will be looked at from the perspective of the four transitional justice objectives of truth, accountability, reparation and reconciliation (obviously taking into account the extent to which each of these intakes is relevant for the particular situation). In order to do so, the transitional justice response will be placed in the prevailing constitutional, institutional and general legal context. For each of the sets of events, the analysis will cover the transitional justice response that followed in their (more or less) immediate aftermath. 3 will cover the transitional justice response insofar as it was part of the Arusha peace negotiations process (starting in June 1998), the Arusha Peace and Reconciliation Agreement of August 2000 and its aftermath, including the negotiations between the UN and the Burundian government on the implementation of the Kalomoh report. The (proposed) transitional justice process dealt with in Chapter 3 is, in fact, not exclusively related to one particular set of events, but to the various sets of events spread in time during all of Burundi's post-colonial history.

THE 1965 EVENTS

As described above, the 1965 massacres should be considered in the context of the leadership crisis that was unleashed within Uprona by the assassination of Prince Louis Rwagasore in October 1961, one month after he and his party won the legislative elections.

THE AFTERMATH OF THE ASSASSINATION OF PRINCE LOUIS RWAGASORE AND OTHER POLITICAL VIOLENCE BEFORE INDEPENDENCE

The assassination of the Prime Minister of Burundi, occurring at a time when Ruanda-Urundi was still a trust territory, prompted an immediate reaction by the UN General Assembly. UN General Assembly resolution 1627 (XVI) called for an investigation into the circumstances of the Rwagasore's death by the UN Commission for Ruanda-Urundi, considering that “an inquiry and punishment of those responsible for the dastardly act are called for”. The Commission submitted a preliminary report on 11 November 1961 and a final report on 26 January 1962.

While the first part of this monograph adopted a largely inductive, empirical perspective, this final chapter is fundamentally based on two normative foundations. First of all, it reflects a preference for a transitional justice process that is determined by and shaped in accordance with the relevant international legal framework as it applies to Burundi. This is in turn related to a more general normative preference for a political transition that results in States being governed increasingly by the rule of law (both in its formal and its substantive dimension) and decreasingly by the arbitrary rule of power. Secondly, in line with the jurisprudence of international human rights bodies, it reflects a preference for law – in particular international human rights and humanitarian law, including insofar as they are incorporated or reflected in constitutional and overall domestic law – to produce its intended effects rather than for law to be (systematically) ineffective, neglected, violated and/or circumvented. Though focusing on the question of how to increase the impact of international law on Burundi's transitional justice law, policy and practice, we acknowledge that calling upon international law may not be the most efficient way of promoting a more equitable transitional justice process for Burundi. Indeed, other perspectives, such as those focusing on the impact of civil society, the input of religion, the role of enlightened political leadership, the impact of carrots and sticks at the disposal of international donors, etcetera, may deal with factors that have a higher potential leverage than the one adopted here. However, because of the dominant (legal) disciplinary perspective of this study, and while again calling for ‘legal humility’ and acknowledging the dominant impact of other determinants, this Chapter addresses the question how, through constitutional adjudication, Burundi's transitional justice process can be more in line with international law and less determined by political expediency.

A FOCUS ON CONSTITUTIONAL ADJUDICATION

What are the ‘comparative advantages’ or other reasons that justify our attention for the role of constitutional adjudication as a way of enhancing the impact of international law on Burundi's transitional justice process?