Changing Dynamics in the Western Balkans
Changing Dynamics in the Western Balkans

Rule over Law

ICG, with the support of the European Commission, has established a project to promote justice in Bosnia and Herzegovina.  With the assistance of 8 partner organisations based all over BiH, ICG will monitor individual cases and general trends to highlight and promote the development of a judicial system in BiH up to the standards of a modern, European judiciary.

ICG, with the support of the European Commission, has established a project to promote justice in Bosnia and Herzegovina.  With the assistance of 8 partner organisations based all over BiH, ICG will monitor individual cases and general trends to highlight and promote the development of a judicial system in BiH up to the standards of a modern, European judiciary.  This first, introductory report examines the factors preventing the development of an independent judiciary, and outlines steps necessary to promote judicial independence.

The BiH judiciary is in transition. In the former SFRJ system, the judiciary ceded much control to the police to determine guilt in the field of criminal justice investigation, thus reducing elements of their authority in the legal process.  Furthermore, Communist Party officials often interfered in the justice system.  This interference has continued and even increased under the multi-party system.

Two separate legal systems in BiH exist, with only ceremonial and appeals institutions and functions at the State level, in spite of the BiH Constitution which allows for the formation of more State court institutions.  Within the Federation, loopholes in the legislation on the Supreme Court allow Croat-majority cantons to refuse to recognise the authority and the jurisdiction of the Supreme Court, thus containing all court functions within the jurisdiction of that Canton.  Weak roles for Public Prosecutors, plus anomalies in the legislation which make it hard for strong, Federation-level judges to try cross-cantonal crimes, leave highly autonomous Cantonal Courts open to political influence from ruling parties.

These factors are compounded by the judicial selection process, in which the power to appoint and dismiss judges at whim is in the hands of the ruling political parties, including, in the Federation, party leaders at the Cantonal level.  The judicial budgeting system leaves the economic, as well as professional, well-being of judges answerable to the wishes of the ruling nationalist parties.  Because of the war, the disappearance of many competent, pre-war judges has rendered the judiciary almost exclusively mono-ethnic, with in-experienced, underpaid judges appointed on ethnic, political grounds, or, more bluntly, appointed on the basis of how much they can be trusted to be "loyal" to their own ethnic group.  Poor distribution of proper legal instruments and laws, including BiH State laws, makes it more difficult for young, eager judges to assert their independence.  On the other hand, the presence of legal commentaries from neighbouring countries, with political paymasters in large parts of the country looking to Zagreb and Belgrade, frustrates the development of an indigenous BiH judicial culture.  Poor material resources harm motivation and lead judges to leave the profession.

The close relationship between the political power structures and organised crime and corruption results in pressure being placed on judges to overlook the crimes of known criminals and of those in power.  Judges themselves are not immune from abusing their positions for personal gain, or from political and ethnic prejudices.  Media reporting which glorifies judicial figures and infamous criminals interferes with judicial independence before cases get to court.

Many steps are necessary to promote the development of the independent judiciary demanded by the Madrid Peace Implementation Council document.  The following steps, including some already underway at the behest of the international community in BiH, will help to free the judiciary from the dictates and interference embedded in the political culture of Bosnia and Herzegovina: 

  • removing the authority from Cantonal and Municipal political structures to appoint and dismiss judges;
  • vesting authority in judicial selection, appointment and dismissal in the parliamentary assemblies of both entities on the recommendations of a State-level Judicial Service Commission; judges to be appointed for renewable five-year terms with the approval of the Commission;
  • establishing clear parameters and guidelines, in the parliamentary assemblies of the entities, on the financing of the judiciary.  RS courts to be financed to the same set levels per head of population and case-load; Federation Cantons to finance their judiciary within set percentage ranges of the Cantonal budgets;
  • international community resourcing to upgrade courts depending on progress in establishing multi-ethnicity;
  • drafting strong roles for the Prosecutors in the new RS Criminal Code, giving them authority to prosecute crimes down to the Basic Court level;
  • strengthening the role of the Federation Prosecutor by creating a section of the Supreme Court to try cross-cantonal crimes; promoting the authority of the Federation Prosecutor over the Cantonal Prosecutors;
  • adopting legislation to implement CRPC decisions;
  • investigating and removing officials who are failing to implement Human Rights Chamber and Ombudsperson decisions;
  • establishing strong roles for Judicial Police, in both entities, to enforce court decisions;
  • investigating and removing locally-elected officials who investigate with the judiciary; preventing those elected officials who interfere with the judiciary from running for the April 2000 Municipal elections;
  • removing corrupt judges.

Without these, and similar reforms, there is a danger that the BiH judiciary will never come out from under the influence of the nationalist power structures entrenched in Bosnian society.  Without these reforms, the Judicial Reform Strategy cannot hope to succeed to restore dignity to the judicial process and profession, so often misused as an instrument of ethnic cleansing during the war.

Sarajevo, 5 July, 1999

Changing Dynamics in the Western Balkans

This week on War & Peace, Olga Oliker talks to Crisis Group expert Marko Prelec about the precarious situation in the Western Balkans, as Serb separatism in Bosnia and Herzegovina, and the frozen Kosovo-Serbia dispute continue to stoke regional instability.

The Western Balkans, a region defined in part by not being in the European Union, also contains several countries that were devastated by war in the 1990s. Now it faces new troubles, driven in part by the legacies of the old. Bosnia and Herzegovina is confronted with calls for secession in the autonomous Serb-dominated region, Republika Srpska, as well as the ongoing electoral grievances of its Croat minority. Meanwhile, efforts to resolve Kosovo’s dispute with Serbia over its independence have come to a standstill, leaving minority communities on both sides of the border vulnerable.

This week on War & Peace, Olga Oliker talks to Marko Prelec, Crisis Group’s Consulting Senior Analyst for the Balkans, about why ethnic tensions persist in the region and whether there is any risk of a return to conflict. They discuss the prospects for European integration, asking whether the promise of EU membership remains an effective incentive for resolving these longstanding disputes. They also consider what impact Russia’s invasion of Ukraine has had for stability in the Western Balkans, a region where painful memories of war are still very salient today.

Click here to listen on Apple Podcasts or Spotify.

For more of Crisis Group’s analysis, make sure to check out our Balkans regional page and keep an eye out for our upcoming report on the risk of instability in the Western Balkans.

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