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EXECUTIVE SUMMARY AND RECOMMENDATIONS
The law does not yet rule in Bosnia & Herzegovina. What prevail instead are nationally defined politics, inconsistency in the application of law, corrupt and incompetent courts, a fragmented judicial space, half-baked or half-implemented reforms, and sheer negligence. Bosnia is, in short, a land where respect for and confidence in the law and its defenders is weak.
Bosnians are unequal before the law, and they know it. Exercise of the legal rights to repossess property or to reclaim a job too often depends on an individual's national identity - or that of the judge before whom she or he appears. Even when citizens do get justice in the courts, the chances of having decisions enforced can be slim, since the execution of court orders is often prolonged unlawfully or hedged in arbitrary conditions. Obtaining justice is also subject to geographical chance. War crimes in one entity or canton are still hailed as acts of heroism in another.
Ethnicity and geography are not the only brakes on justice. An individual's position in or relationship to one or another national-political elite also counts. Punishing the powerful and the well connected for milking public coffers or appropriating public goods - whether in the name of the 'national cause' or for private gain - remains virtually unknown. Although allegations of corruption in high places appear in the newspapers every day, and formal investigations are nearly as common, not a single past or present national party leader has yet been convicted and sent to prison.
Unlike for the majority of law-abiding Bosnians, national discrimination and 'ethnic justice' do not apply to smugglers, racketeers, tax evaders, gunrunners, drug dealers, white slavers, and their patrons. These groups rejoice in what remains of old Yugoslavia's "brotherhood and unity", doing business across internal and external borders and national or confessional divides. Their community of interest - in getting rich and defying the law - contrasts with the disunity of those who want to uphold the law.
Not only is Bosnia divided juridically into three, four, fourteen, or sixteen territorial-hierarchical jurisdictions (depending on how the one state, two entities, one autonomous district, eight unitary cantons, and two mixed cantons are counted); it also has three separate sets of laws, two of which are replete with contradictory provisions. This fragmentation is a boon to criminals and a pitfall for would-be reformers and enforcers of the law.
The discontinuity of the territorial structure bequeathed by the Dayton Peace Accords is compounded by Bosnia's mixed legislative inheritance. The statute books contain a multitude of outdated, overlapping and inconsistent laws from the pre-war, wartime and post-war periods. They are applied (or not) by courts which are too numerous, too expensive, too inefficient, and too vulnerable to political influence.
The brain drain of legal talent that accompanied the war continues today. This, coupled with the 'politically correct' appointments that have prevailed throughout, means that the country's several executive authorities wield influence over judges' minds as well as their purses. The courts are simply in no position to resist either the power of the executive or the temptations of national solidarity.
The dysfunctional nature of Bosnia's legal and judicial system has been long apparent to both domestic legal experts and international officials. The Office of the High Representative (OHR), the United Nations Mission in Bosnia & Herzegovina (UNMIBH), the Organisation for Security and Cooperation in Europe (OSCE), the Independent Judicial Commission (IJC), and various NGOs have regularly reiterated both their keen appreciation of the centrality of the rule of law and their commitment to establishing it.
But this recognition of the problem and an appreciation of its dire consequences have not led to the adoption and implementation of adequate remedies. There has been no coherent, coordinated and thoroughgoing program of judicial and legal reform. Rather, international efforts have typically been timorous, incremental, piecemeal and disjointed, leading to long delays, the loss of institutional memory and periodic re-launches of reform schemes. In particular, international agencies have sought quick fixes for systemic problems. The saga of the now abandoned program of "comprehensive" judicial review is the most depressing case in point.
As a consequence, millions of dollars have been spent since 1996 by an assortment of international agencies to promote the rule of law in Bosnia, including hefty salaries for over 200 foreign legal experts who have worked to improve the performance of Bosnia's 1,200 judges and prosecutors. In comparison to the sums expended, the results achieved have been pitiful. Brcko District, in northern Bosnia, is the positive exception to the general sorry record, and proves that successful reform is possible.
Parroting at least part of the international community's charge sheet, Bosnia's governments and politicians never fail to take an opportunity to castigate their country's politicised and ineffectual judiciary, blaming it for all manner of societal ills. Yet they have refused to free judges and prosecutors of political manipulation and make the judiciary an independent pillar of a lawful state. Rather, the political parties keep the judiciary obedient by seeking always to appoint their own 'good' judges in place of other parties' 'bad' ones, railing against the continuing indignity of foreign judges on Bosnian benches, and ensuring their own discretionary powers in the distribution of justice remain intact.
Now, belatedly, the international community is giving the establishment of the rule of law the priority it deserves. The High Representative is expected to create a new, state-wide High Judicial Council in the first week of April. This step will likely be followed by the swift passage or imposition of a package of some 52 laws on legal and judicial reform. This new initiative probably represents the last chance for fundamental reform. A new, serious and long-term commitment by Bosnians and foreigners alike is required if the complex judicial and legal measures essential to the rule of law are to be implemented while the international community is still on hand to help.
The increasing complexity and ubiquity of cross-cantonal, cross-entity and cross-border criminal networks; the legal challenges posed by a transition economy; the need to try thousands of war crimes cases in the country; the faltering interest of the international community in Bosnia; and the increased pressure to uphold legal standards and human rights posed by Bosnia's imminent membership of the Council of Europe and other European bodies - all point to the unsustainability of the current legal and judicial disorder. But they also testify to the inadequacy of past and present international approaches to reform.
If Bosnia is to be ruled by laws and not by wilful men, let alone to progress towards European Union membership, then the responsible international agencies (above all OHR and the IJC) and Bosnian jurists and politicians should consider the following recommendations and undertake reforms in a coordinated, coherent and consistent manner, applying the lessons drawn from Brcko. The recent decision of the Peace Implementation Council (PIC) to scrap peer review of judges and the priority now being accorded to rule of law issues by the High Representative, his designated successor and at least some Bosnian leaders are encouraging signs that the challenge may finally be confronted.
RECOMMENDATIONS
Bosnia requires uniform, comprehensive reform of its various judicial and legal systems, simultaneously in both entities and at the state level. This reform should:
embrace the judiciary and, in particular, the judicial appointment mechanism;
harmonise legislation;
include the adoption of new civil and criminal legislation;
remove the grip of the executive on the financing of courts, and the grip of the legislature on the hiring and firing of judges;
streamline the bloated and very expensive court structures, improve court management;
professionalise the legal profession, modernise legal education; and,
pursue a cultural revolution in the attitudes and practices of court personnel.
CONSTITUTIONAL AND LEGAL REFORM
Legislation to regulate and institutionalise obligatory and automatic cooperation in criminal and other legal matters among the courts, prosecutors and police of the state, the entities and Brcko District should be enacted by the state, entity and district assemblies by June 2002.
Bosnia's parliamentary assemblies, advised by OHR, should amend the state and entity constitutions and laws by June 2002 to:
Provide for the establishment of a state-level Judicial Commission; and
Reform the court structure in the Federation and Republika Srpska to reduce the number of municipal and cantonal courts and prosecutors' offices, switching from a system based on administrative-territorial units to one based on court-to-population ratios.
By September 2002, the state and entity parliaments should pass criminal and civil legislation - uniform throughout the country and in conformity with European standards - to establish effective legal procedures for the delivery of thorough and expeditious criminal investigations, civil litigation and fair judicial processes.
The state and entities should enact legislation by the end of 2002 that provides for the financial independence of the judiciary and the reform of court administration, as recommended in the IJC strategy document.
The High Representative should brook no further delay in ensuring the adoption of the draft law on inter-entity judicial cooperation, and the draft state-level law that would require all lawyers to be certified by and registered with the BiH Bar Association.
THE JUDICIARY
The Constitutional Court's decision on the equality of the "constituent peoples" must be fully applied to the judicial system. Furthermore, as the decision is implemented, the judiciary must be empowered to take responsibility for upholding the integrity of the process and the permanence of its results.
Pending the completion of a comprehensive reform process, the international community should not yield to Bosnian arguments against the participation of foreign judges in the work of Bosnian courts. The removal of such judges would not increase Bosnian sovereignty but rather diminish the independence of the BiH Constitutional Court and the rights of Bosnians.
REAPPOINTMENT PROCESS
The failed comprehensive peer review of judges and prosecutors should be replaced with a general reappointment process (GRP) on the model successfully applied in both the former German Democratic Republic and Brcko District.
Incumbent judges and prosecutors (as well as other qualified candidates at home and abroad) should be invited to reapply (or apply) for all available positions in a transparent and internationally supervised competition.
Candidates should be required to demonstrate that they meet prescribed criteria of professional competence, moral integrity and commitment to the highest standards of human rights, precluding involvement in the administration of 'ethnic justice' during and since the war.
General reappointment should be completed, within a calendar year, by spring 2003.
General reappointment should be organised and administrated by a state-level interim judicial commission, led by the IJC but also including foreign judges of the BiH constitutional court, distinguished Bosnian jurists and legal scholars, prominent lawyers from the Ombudsmen offices and private practice, and representatives of the executive.
The IJC should retain the final say in approving initial appointments for a probationary period of one year, during which appointees would be trained to apply the new criminal and civil procedure codes.
Upon expiry of the probationary period, the interim judicial commission should become a permanent commission, without further IJC participation but including judges of the entity's supreme and constitutional courts, as well as their chief prosecutors.
The permanent, state-level judicial commission would confirm or deny life-time mandates for the probationers.
TRAINING AND STANDARDS
Thoroughgoing reforms are required to entrench high professional standards in the judiciary. IJC, OHR and other international agencies should organise training for newly appointed judges and prosecutors on the principles and application of the new legislation. Training on the new criminal procedure code should also include police officers, lawyers and academics.
The IJC and other international agencies should assist in the reform of the legal profession, in particular by creating a state-wide bar association capable of setting and maintaining ethical and professional standards across the country and serving as a 'doorkeeper' to the profession.
The international community should encourage the reform and modernisation of Bosnia's university law faculties and their curricula, bringing to bear the talents and experience of legal professionals to ensure that graduate lawyers can be effectively assimilated into the system.
Given that UNMiBH's mandate will expire at the end of 2002, the monitoring capacity of the UN Mission's Criminal Justice Advisory Unit (CJAU) must be utilised to the utmost - including oversight of the soon-to-be promulgated criminal procedure code - while it exists. Also, steps should taken this year for the IJC to develop or acquire its own monitoring unit, for example by absorbing CJAU's staff and structures before its demise.
WAR CRIMES
OHR, the IJC and the Council of Ministers should ensure that, by spring 2003, the nascent state court is in a position to begin the trial of thousands of war crimes cases that will not fall within the purview of the Hague Tribunal.
The integrity of domestic war crimes trials should be assured both by the participation of foreign judges and by the previous elaboration of programs to build capacity among law enforcement agencies and to protect witnesses.
In order to educate the Bosnian public about the future role and responsibility of the state in prosecuting war crimes, Bosnia's Public Broadcast Service (PBS) should provide extensive coverage of all trials in The Hague related to Bosnia.
RESOURCES
The Peace Implementation Council (PIC) and international donors should provide the IJC with sufficient financial means, human resources and political support to complete a truly comprehensive program of judicial and legal reform.
International organisations and donors should continue to finance the Ombudsman offices and press for the enhancement of their powers and the implementation of their recommendations.
Sarajevo/Brussels, 25 March 2002
