Transitional Exceptions to the Rule of Law in International Administrations: The Case of the OHR in Bosnia and Herzegovina and the Right to Due Process
Posted: 22 Jan 2011 Last revised: 18 Mar 2021
Date Written: January 21, 2011
Promotion and even direct implementation of rule of law in conflict and post-conflict societies, as defined by the UN Secretary-General in 2004-2006, have actually become core activities of the United Nations during the last decades. These tasks are occasionally entrusted to international administrations that exercise a number of legal competences in the field embodied in their international mandates. The Office of the High Representative in Bosnia has been mandated to guarantee that full compliance with the Dayton Peace Agreement is achieved, including respect for the essential elements of rule of law in this society, as a key condition for long-lasting peace. However, some of the competences of the OHR seem to go far beyond the most basic idea of rule of law. This is the case of the power to vet, dismiss and ban public officials from public life at the OHR’s discretion, in permanent and increasing tension with the due process requirements. This anomaly can be explained by the need for some transitional exceptions to the rule of law in conflict and post-conflict societies. Furthermore, suspensions are provided for in every international human rights system on the grounds of exceptional emergency situations (e.g., Articles 4 ICCPR and 15 ECHR). Notwithstanding, there seems to be a common limitation to exceptions in these human rights protection systems that require them to be temporary. After thirteen years of exceptional rule in Bosnia, could this be the time for revision? Any tentative answer would need a thorough evaluation of the political situation in Bosnia. This paper only attempts to offer some reflections on possible legal scenarios.
Keywords: International Administration, Rule of Law, Due Process, International Human Rights Law
JEL Classification: K33
Suggested Citation: Suggested Citation