Respect for international humanitarian law

“Determined to ensure full respect for international humanitarian law”

International humanitarian law proved to be ineffective in the most horrible armed conflicts in Europe after World War II; it could not prevent what had lasted for years: genocide, ethnic cleansing, concentration camps, urbicide, and horrible economic damage. For this reason the Framer of the Constitution considered it important to once again stipulate in the Preamble the obligation for all responsible parties to respect international humanitarian law.

The core of international humanitarian law is the four Geneva Conventions from 1949 and their Additional Protocols from 1977 and 2005:

First Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field;

Second Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea;

Third Geneva Convention relative to the Treatment of Prisoners of War;

Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War;

Protocol Additional to the Geneva Conventions relating to the Protection of Victims of International Armed Conflicts (Protocol I);

Protocol Additional to the Geneva Convention relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II);

Protocol Additional to the Geneva Conventions of 12 December 2005.

In order to avoid all possible misunderstandings relating to the applicability of these instruments on the territory of the State of Bosnia and Herzegovina at the moment of the adoption of the Constitution, the Framer of the Constitution included them in the list of 15 international instruments for the protection of human rights provided for in Annex I to the BiH Constitution, thus giving them the rank of substantive constitutional rights.¹⁷⁴ The State and its lower level units are obliged to respect international humanitarian law, thus, to prevent violations of that law but also to take positive actions in the field of protection of people against violations of that law. This also includes the obligation to incorporate new developments relating to humanitarian law into the national law of the State (such as Additional Protocol of 12 December 2005).

Given the unlimited nature of obligations which may be imposed by humanitarian law, as deriving from line 7 of the Preamble, the question arises as to whether new developments in the case-law of the Constitutional Court, relating to the isolated applicability of the instruments laid down in Annex I to the Constitution, are sustainable. If the Court, in Case No. AP 95/06,¹⁷⁵ allows the rights under Annex I to be exercised only if discriminatory treatment is proven, then it can be considered a violation of an absolute obligation to respect humanitarian law, and thus, an obligation which is not exclusively related to discrimination. Therefore, the quoted case-law of the Constitutional Court, could, at least in this sense, if not as a matter of principle, be called into question.¹⁷⁶