By Bodo Weber
Three legal cases/political scandals during 2018-19 grabbed the attention of the domestic public and the international community in Bosnia and Herzegovina (BiH). The first two concerned the unresolved deaths of two young men, Dženan Memić in Sarajevo and David Dragičević in Banja Luka. The improper investigative conduct of the police and judiciary regarding their deaths raised suspicions of cover-ups and political interference. The third concerned corruption allegations against Milan Tegeltija, then president of the High Judicial and Prosecutorial Council of Bosnia and Herzegovina (HJPC), the BiH judiciary’s self-managing body.
The three cases marked the nadir of a steady decline of the rule of law institutions in BiH over the last decade and a half, and stand in stark contrast to 2005 when BiH was a frontrunner among Western Balkan countries aspiring to European Union (EU) membership. Rule of law achievements until then had been the result of substantial and systematic judicial and (to a lesser degree) police reform carried out during the immediate post-war period under the leadership of the international community.
The subsequent decline was the result of continuous and largely successful efforts by ruling ethnic elites in rolling back previous reform achievements. While state-level institutions such as the Court of BiH, the Prosecutor’s Office of BiH and the HJPC were particular targets of attack, the independence of the judiciary (and operational autonomy of the country’s various police administrations) were subjected to systematic, grinding attrition. This U-turn in the development of the rule of law in BiH was enabled by the international community’s policy shift in 2005 from the immediate post-war “Dayton” phase to the “Brussels” phase and towards a dogmatic adherence to the concept of “local ownership,” which has proven an utter failure. It created a power vacuum soon filled by the ethnic elites’ unfulfilled nationalistic agendas and corrupt interests and left the international community and its institutions, now headed by the EU, without a political strategy. Weakened by this lack of a political strategy, the international community suffered from insufficient political will to push back seriously against the ruling elites’ reform rollback attempts. As a result, it compromised over the rule of law to an extent which amounted to de facto, and in several cases outright, collusion.
The main episodes of that relationship that ensued over the last decade include: the December 2009 decision to prematurely terminate the mandate of international judges and prosecutors dealing with organized crime and corruption, the 2011 Republika Srpska (RS) Law on Courts that contained provisions that undermined the authority of the HJPC, negotiations on a BiH Law on Courts that proceeded within the framework of the so-called EU-led Structured Dialogue on Judicial Reform, various attacks on the Constitutional Court of BiH (CC BiH), the post-2012 decentralization of war crimes prosecutions, and continuous attacks and initiatives aimed at undermining the operational autonomy of the police.
These largely successful attacks on key rule of law institutions resulted in systematic reform rollbacks that have had a huge and devastating impact on those working in the rule of law institutions, and on citizens more generally. Most officials in the judiciary and police over time have given up defending the independence of their institutions as well as their own professional integrity. Even more damaging, BiH citizens have lost all hope in the rule of law institutions, in the delivery of justice, in securing public and personal security, and in the international community, particularly the EU, as an actor defending and promoting the rule of law. That attitude of resignation and the sense that fundamental improvements are impossible represent a foundational factor underlying citizens’ mass exodus from BiH that has been unfolding over the last couple of years.
In 2019, the European Commission (EC) published three key programmatic documents on BiH – the May Avis, its Opinion on BiH’s application for candidate status, and an accompanying Analytical Report, and the December “Expert Report on Rule of Law Issues in BiH” known as the Priebe Report, declaring the rule of law to be the EU‘s new top priority in BiH and requesting and conditioning substantial, comprehensive reform. However, two years on, there is close to zero progress on those reform conditions in BiH. Moreover, both the Avis and the Priebe Report had failed to address the EU’s legacy of past co-responsibility for successful reform rollbacks in the rule of law institutions. Without the EU owning up to the responsibility it shares for the damage done to the judiciary and the police through these episodes and taking action to repair that damage, substantial progress in promoting the rule of law will be impossible, and making the rule of law the Union’s top priority will remain a mere empty declaration.
This paper serves as an introduction to a policy paper/note series entitled “The Decline of the Rule of Law in Bosnia and Herzegovina and the Role and Responsibility of the International Community” that constitutes a central component of a project launched in 2019 by the Democratization Policy Council (DPC) with the support of the Heinrich Böll Foundation office in Bosnia and Herzegovina. It is aimed at initiating a dialogue among Western diplomats and officials on the international community’s co-responsibility for the decline of the rule of law in BiH – with each subsequent paper covering one of the key episodes stated above – focused on how the damage done can be repaired, and how international actors can contribute to a re-strengthening of the rule of law institutions in BiH.
More detailed and granular recommendations will be offered throughout this policy paper/note series.
To (re)strengthen the rule of law in BiH, the EU and its Western allies need to undertake several crucial measures:
- EU officials need to strongly advocate in BiH for implementation of the rule of law-related reforms contained in the 2019 Avis and the Priebe Report and actively and explicitly link them to the broader issue of constitutional reform, particularly with respect to the establishment of a Supreme Court and the defense of state-level judicial institutions,
- the EU and other Western actors should drop the artificial “deadline driven” prioritization of reform of the BiH electoral system, including “limited constitutional reform,” an issue that is better addressed once they’ve agreed on a comprehensive, long-term policy strategy on BiH, including constitutional changes, and instead focus on rule of law reform issues,
- the EU, the OSCE, and bilateral Western donors need to reconceive their existing individual programs for engagement of foreign judges and prosecutors in an advisory role in the BiH judiciary as a single joint strategy that focuses on the judicial institutions that prosecute sensitive cases of high-level (political) corruption and organized crime,
- the EU and other Western actors need to forcefully advocate and push for both previously planned and additional legislative measures which aim to re-establish the basic accountability and judicial integrity of judges and prosecutors and of HJPC members. Such actions must include the immediate adoption of the prepared amendments to the Law on HJPC and the subsequent adoption of a new Law on HJPC aimed at a comprehensive reform of the Council (its functions, competences, tools and procedures) to improve its functioning and to reconstitute its independence. Among the specific measures to include in new legislation should be a one-time reappointment process of all Council members based on a revamped vetting process and a basis for the further evolution of existing (quantitative and qualitative) criteria by which the HJPC evaluates the performance of judges and prosecutors,
- the EU and the US need to acknowledge and address the legacy of their past actions in the rule of law arena and remedy the damage inflicted on the judiciary; in particular, the RS Law on Courts must be amended and Western representatives should encourage the appropriate domestic actors to file a request for review on constitutionality with the CC BiH aimed at a potential revision of the Ljubić ruling, instead of insisting on its implementation,
- the EU, together with its Western partners, and in close cooperation and consultation with broader civil society, needs to develop and implement a comprehensive strategy to counter the denial and glorification of war crimes prevalent in society including among politicians,
- EU representatives, EU member states and other Western ambassadors in BiH need to empower judges and prosecutors and other judicial officials who uphold the independence and integrity of the judiciary by backing them in their work and independent decision-making through public statements of encouragement and direct support to the institutions they serve,
- the EU, the OSCE and other Western actors need to closely monitor the Prosecutor’s Office of BiH’s handling of the Memić case and press for the Office to also open an investigation into the Dragičević case,
- the EU needs to work with independent BiH experts and other stakeholders to develop and adopt a comprehensive police reform strategy that contains conditionality comparable to the existing conditionality for the judiciary. Because the police issue is not adequately covered by the EU acquis, the initiative must come from the European Council, i.e., from dedicated member states, and as part of the political criteria for EU accession (the Copenhagen criteria),
- EU and other Western officials must consistently apply reform conditionality, particularly on the rule of law in BiH, as well as on the rules that define and guide their presence and work in BiH. Evading self-set rules sends a devastating message to political elites and the wider public in BiH, inflicts lasting damage on the country’s legal culture, and discredits Western efforts to strengthen the rule of law.