ii. Responsibility for violation of rights

The issue of responsibility in the event of international authorities violating legally binding norms is a very complicated issue. In such cases, the Human Rights Chamber, given its specific mandate under Annex 6, was mostly restrained and was always accurately re-examining whether the activity of international actors may be attributed to some of the signatory parties under Annex 6. Only in the case of an affirmative answer to that question, the Human Rights Chamber would assume responsibility. As a rule, the Chamber denied the possibility of attributing this responsibility to international actors by referring to the international basis for their authorities given that they neither operate as their representative nor based on the waiver of signatory parties concerning the said authorities. By relying on the judicial practice of the BiH Constitutional Court, the Chamber finally acknowledged the responsibility of international actors only in cases where the signatory parties under Annex 6 had the possibility to exert their influence on the international actors but failed to do so. For instance, there is one case of a law imposed by the OHR which is in contravention of the ECHR and which the domestic authorities could have amended. Also, in the event of a reversal, the transfer of responsibilities which were originally outside the scope of the competence of domestic authorities (elections under Annex 3 and property under Annex 7), the Human Rights Chamber, i.e., the Commission for Human Rights within the BiH Constitutional Court, considered those responsibilities as acquired, (from a certain moment), i.e., as a responsibility assumed by domestic institutions. However, in cases concerning IPTF and SFOR, the Human Rights Chamber remained totally indecisive. As far as the IPTF is concerned, at the beginning the Chamber was denying any responsibility of the domestic authorities but at the end of its mandate the Chamber declared admissible an application of a decertified police officer. The Human Rights Commission within the BiH Constitutional Court, which was to decide on the merits of that case, took a step back and denied any responsibility of the Federation for the actions of the IPTF. Given the serious human rights violations by SFOR in the Fijuljanin case, the Chamber first showed an intention to move away from its explicit judicial practice, which denied any responsibility of the signatory parties under Annex 6, and requested the State to issue an interim measure and intercede by asking SFOR to release the applicant. After the applicant’s release, the decision on the merits was no longer required.

The initial position of the BiH Constitutional Court was different. The Court did not deal with questions as to whether the domestic authorities are responsible for interventions of international actors, but it rather asked itself whether it is competent to review such acts. Thus, the BiH Constitutional Court commenced cautiously to refer to the formula which concerns “functional duality” (a formula on the activity of international actors which, in certain situations, substitute for domestic authorities) and thus implicitly concluded that the domestic actors were also responsible for domestic laws even when imposed by the High Representative in his decisions while substituting for the domestic authorities. As for other bodies under the GFAP, which are in charge of elections (Annex 3), property repossession (Annex 7) and human rights and freedoms (Annex 6), the BiH Constitutional Court gave a negative reply to the question as to whether it is authorised to review the mentioned laws because of systematic and teleological parallelism among the GFAP Annexes. The issue of responsibility of domestic authorities, regardless of the authorities pertinent to control, i.e., review, was never the subject of discussion. This issue – which is very interesting – became a topic of discussion only after the personnel of the Human Rights Chamber had merged with the BiH Constitutional Court and after the BiH Constitutional Court had started making a distinction between the issue of responsibility for human rights violations committed by international actors on the one hand, and the issue of competence of domestic authorities to review such acts, on the other. All at once, the BiH Constitutional Court changed its course towards protection of human rights. After being freed from the chains of its own competence and aimed at providing maximal protection for constitutional rights and freedoms, the BiH Constitutional Court established that despite the special authorities and international law on which these authorities are based, an individual must not remain unprotected. The domestic authorities that had been denying any responsibility were now held responsible for ensuring this protection. The BiH Constitutional Court stated that it was an irrelevant fact that the domestic authorities were not competent to review the acts of international actors and that they could not prevent conduct which is in contravention of the legally binding norms. In the event that a State would indifferently observe the OHR or SFOR violating the rights of their citizens, then the respective State would also be, to say the least, held responsible for those violations. Based on the positive obligations to protect the constitutional rights and obligations which are certainly competing with the international- legal obligations under Annex I-A and Annex 10 but not suppressing them, the State must undertake all necessary and permitted steps in order to ensure that an individual is protected. The Court further stated that otherwise the State will be held responsible for failing to do so. The Court concluded that even if the possibilities in this regard are limited to investigations, support to injured parties, appeals and letters to the competent bodies of international law and to other kinds of international activity, they prove to be effective very often.