Publication Date

Spring 2008

Journal

Tulane Journal of International and Comparative Law

Abstract

The value of equality has little currency after genocide and ethnic cleansing. Restoring that value is no easy feat. Paramount, though not singular, in this struggle for equality is the role of the law A State establishes its common legal rights and duties through its legal institutions, which define the values and character of the nation. Legal institutions mediate these values and norms and through legal pronouncements provide a template for future civic engagement and social interaction. Equality and antidiscrimination jurisprudence is particularly important during the delicate period of transition alter genocide, because it grounds within society the normative shift in pninciples underlying the cultural understanding of equality Specifically, this Article addresses the question what can equality mean in a postgenocidal environment that rests on ethnic inequality or domination? An analysis of the antidiscrimination jurisprudence of the quasi-national legal institutions established under the General Framework Agreement for Peace in Bosnia and Herzegovina (GFAP) provides the forum for this exploration. A review of the Constitutional Court and the Human Rights Chamber antidiscrimination juisprudence reveals that each court has taken a formal approach to equality This Article argues that a formal approach to equality is not appropriate in the context of Bosnia or other countries recovering from ethnic strife. Only a substantive approach to equality, which addresses historical inequality will stimulate a jurisprudence that can help to heal the long-term effects of genocide. A robust development of substantive antidiscrimination jurisprudence, consciously developed to overcome the continuation of institutionalized social conflict, will ultimately fulfill equalitys promise as mandated by the GFA? Reflecting on the Bosnian experience, certain legal principles concerning equality and antidiscrimination are revealed that should be applied to countries recovering from mass atrocities based upon ethnic identity in today world The international community is actively engaged in rebuilding the legal systems of countries with deep ethnic divides including Iraq, Afghanistan, Kosovo, and Sudan. Like in Bosnia and Herzegovina (BiH), nationally ingrained inequality exists and must be defeated in all postconflict communities in order to create an environment where different nations can exist under one State banner.

Volume

16

Issue

2

First Page

329

Last Page

394

Publisher

Tulane University School of Law

Disciplines

Administrative Law | Civil Rights and Discrimination | Comparative and Foreign Law | Human Rights Law | Jurisdiction | Law

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