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.
For download the Policy paper, click here