iv. Criteria

As to the cases where the Constitutional Court of BiH and the relevant authorities under Annex 6 submitted the activity of international actors to review on the merits, the courts were applying the BiH Constitution and conventions which, with their constitutional and legal position, constitute the substantive constitutional law. In the Subotić Case, the Constitutional Court did not mention, as an argument, the state of emergency related authorities by which, as a rule, constitutional rights are limited, although the Constitutional Court probably intended to state that SFOR should also act in a way appropriate to the situation. Unlike the aforesaid, in the Džaferović Case, the Human Rights Commission within the BiH Constitutional Court explicitly relativised the procedural rights of the injured party under Article 6 of the ECHR for the sake of a higher interest, namely stabilisation of the country.

With respect to the protection of human rights and fundamental freedoms, a restricted reference to Article 15 of the ECHR might be made as well. However, even when it comes to a fair balance or interpretation of terms such as proportionality and the general/public interest, there is certain manoeuvring space that allows for consideration of special circumstances pertaining to the transition of state and society.

It is rightly mentioned that the debate on the issue of reviewing the activities of international actors in Bosnia and Herzegovina is not related to the significance or necessity of such interventions.³⁵⁴⁰ However, the international actors themselves have mentioned several times that even the best experts working in peace keeping missions and having the best intentions cannot always avoid making mistakes.³⁵⁴¹ For just this reason, compliance with the minimum international standards and establishment of proper control mechanisms is a clever move. Accordingly, both of the aforesaid is required, in particular after taking into account the fact that in some areas international organisations, being granted their interventionist authorities, interfere with the domestic legal framework. Even if those interventions are basically justified, a possibility of reviewing those interventions by a very neutral institution is still required from the point of view of injured persons, and this institution should be able to review and amend the acts of the international community and, at the same time, it should be able to offer an additional legitimacy and legal force to those acts. It is also necessary to mention that the international community in BiH, including other areas as well, acts in a manner as to setting the highest standards, which means not only in the field of protection of human rights but also in the field of fundamental constitutional principles such as the legal state and democracy. In order for a peace keeping mission to be effective, it is necessary that it carefully moves, like walking the knife edge, between the highest law achievements and the general interest of the country where these international actors operate in the interest of permanent elimination of troubles and problems. However, international actors should be cautious not to fall within the scope of double moral standards which would immediately amount to a loss of their credibility.³⁵⁴² As to the practice of removing officials from office, Alija Izetbegović, the former member of the collective Presidency, noted: “In Sarajevo, [the international forces] remove an official from his office, label him dishonest, do not present any proof of this and then talk to us about human rights and […] they want us to trust them”.³⁵⁴³ Furthermore, as to the practice in BiH, it has been proved all over again that whenever the High Representative has shown an insufficient amount of respect for the national Constitution, the nationalistic political power holders always know how to use it in order to weaken his authority. It has been explicitly proved in the already mentioned debate entitled “The European Raj”. Therefore, taking into account that the High Representative’s authorities on exercising his powers lay on a shaky basis which is of a more political than legal nature, the international community cannot afford to disrespect his authority.

Based on their international component, both courts, as last resorts, could have exercised their right to review all of the acts of international actors and not only the legislative activities conducted on behalf of domestic authorities (principle of functional duality). If we, as a starting point, take into consideration the fundamental Dayton idea that the former warring parties have only limited capacity to reconstruct the country by their own efforts and that, as a consequence, the engagement of international neutral actors is required, then the idea which was realised in Dayton, i.e., the idea on the mixed courts involving both domestic and international factors, proves to be a consequential and functional solution to the problem. This principle does not apply only to the process of reviewing the domestic internal legal acts but also to the process of reviewing the international interventions. That idea is a firm compromise aimed at preserving the principle of power sharing, or – as scenically described by Anglo-Saxon lawyers – the principle of checks and balances: the international element within the highest judicial body in the country guarantees appropriate respect for the general interest: peace keeping. In this way the interventions of international actors may be subject to review in a responsible manner with respect for the principles of lawfulness and constitutionality according to the domestic legal system. In the latest judicial practice of the Constitutional Court it has been, however, concluded that the international community did not operate within a legal vacuum. However, the Constitutional Court is not willing, without the mandate granted by the Security Council or PIC, to take over the responsibility for making sure that international actors comply with constitutional standards.