Legal nature

The Human Rights Chamber found itself in a tight spot between international law and domestic law. The Human Rights Chamber was established by the force of an international agreement. Its legal basis has been mostly defined under Article VI of the General Framework Agreement for Peace in Bosnia and Herzegovina and agreements on human rights under Annex 6 to the GFAP, which is its integral part. Nevertheless, the (contracting) Parties to Annex 6 are only the internal subjects: the State of BiH, the Federation of BiH and the Republika Srpska. The budget of the Human Rights Chamber was to be defined by the contracting parties under Annex 6 and financed by Bosnia and Herzegovina;⁴²² however, in practice the international community had to finance almost 100% of the budget of the Human Rights Chamber.

It took a whole year and the President of the Human Rights Chamber had to step aside before the international donors showed readiness to finance the Chamber.⁴²³ Even in the years to come the donations were not sufficient to cover the planned budget of the Human Rights Chamber, and, to some extent, donations were late.⁴²⁴ That was a reason for a feeling of insecurity in the course of planning activities.⁴²⁵ The Human Rights Chamber was mostly financed by the European Commission and the United States.⁴²⁶ Despite the intense efforts of the OHR to urge Bosnia and Herzegovina to finance the Human Rights Chamber at least partially, the contribution of the State was insignificant. As late as 2002, Bosnia and Herzegovina gave a significant contribution with respect to financing the Human Rights Chamber: 400,000 KM.⁴²⁷

The mixed composition of the Human Rights Chamber has already been discussed. Article XIV of Annex 6 (“Transfer”) refers to the legal nature of the Human Rights Chamber, stipulating that five years after this Agreement enters into force, the responsibility for the continued operation of the Commission shall transfer from the Parties to the institutions of Bosnia and Herzegovina, unless the Parties otherwise agree. In the latter case, the Commission shall continue to operate as provided above. This text can, indeed, be interpreted in a way to understand that the Commission – and consequently the Chamber – has been designed as a permanent institution, and that, after the transitional phase, only its appearance and holders of authorities will change, which means that the Chamber and Commission would not fully disappear. The arguments supporting this statement are contained in the already mentioned Article VII.4 to Annex 6. Pursuant to the above Article, the Members appointed after the transfer of responsibilities to the domestic institutions, described in Article XIV of Annex 6, shall be appointed by the Presidency of Bosnia and Herzegovina. This regulation implies that the Chamber will continue to exist without its international judges.⁴²⁸

Therefore, the Human Rights Chamber was partly perceived as an internal-state judicial authority of sui generis character; and, as claimed by Nowak, by force of its mixed legal foundation, it is neither a constitutional nor an international court.⁴²⁹ The “mixed judiciary” was also mentioned, the so-called juridiction mixte.⁴³⁰ The fact that the Human Rights Chamber is a type of court has never been challenged.⁴³¹ The issue of the legal nature of the Human Rights Chamber was finally addressed by the European Court in 2006. In Jeličić v. Bosnia and Herzegovina (Decision on Admissibility of 15 November 2005), the European Court argued that the Human Rights Chamber had certain international elements, such as, for instance, the fact that the enforcement of decisions of the Human Rights Chamber have been supervised by international organisations on the ground of the international nature of Annex 6. Nevertheless, the European Court further claims that the “national” elements (meaning the internal-state elements) were prevailing, so, in conclusion, it is a domestic court which is a part of the legal system of Bosnia and Herzegovina. The formal obligation of the State of Bosnia and Herzegovina to finance the Human Rights Chamber⁴³² could be viewed as the aforementioned “national” element. Moreover, only Bosnia and Herzegovina, and not Croatia or Serbia, was authorised to extend the mandate of the Human Rights Chamber until 31 December 2003. Also, the European Court further claims that there was no host agreement between the Human Rights Chamber and Bosnia and Herzegovina, and the mandate of the Human Rights Chamber was not any kind of international obligation, but it was exclusively the matter of Bosnia and Herzegovina and its Entities. Despite its mixed composition and international presence in the Human Rights Chamber, the European Court concluded that the Human Rights Chamber was not a mixed international court.⁴³³

Classifying the Human Rights Chamber into the category of domestic courts is also an important issue because of the possibility for its decisions to be challenged before the European Court. As to the point that different standpoints might be advocated for in regards to this matter, there is the fact that the Venice Commission “underwent change” concerning its opinion about the character of the Human Rights Chamber. Thus, in 1998, in one of its reports, the Venice Commission did not describe the Chamber as a “court” of Bosnia and Herzegovina. However, the Commission, in its capacity as amicus curie in the mentioned proceedings before the European Court, described the Human Rights Chamber as a “domestic” or “national” court. In 1998, a question was raised as to whether the Constitutional Court is entitled to review the decisions of the Human Rights Chamber, as “a court in Bosnia and Herzegovina”.⁴³⁴ There were justified reasons for avoiding the said reviews and the Venice Commission opted for the opinion stating that both courts should operate simultaneously and at the same level (The Human Rights Chamber never formally accepted this opinion). However, the motivation and the policy of the European Court (including the Venice Commission now) in the field of human rights, whose aim was that the European Court keeps the right to review the wrong decisions of the Human Rights Chamber, should not be fully disregarded.