CIGI Research Blog

In his paper on judicial reform and corruption in post-conflict Bosnia and Herzegovina (BiH), Per essentially summarizes his views on the subject by stating that both the international agencies operating in the country and the international community, were too late in realizing the significance of endemic corruption, along with judicial reform, were at the root of the problems plaguing peace-building efforts.   Moreover, the international community has essentially failed in its primary attempts to introduce discipline and reform the judiciary in the country and this was effectively based on a learning curve, and not on solid knowledge of the dynamics of corruption plaguing the system.   The international community first sought to leave the process of judicial reform to the Bosnian stakeholders and public servants.   This, however, did not produce any tangible reforms in place, prompting the Office of High Representative to take ownership in leading the process.

The author first goes into detail on the interconnectedness between state-building and corruption in the BiH case.   He stresses further that corruption has a negative effect on not only investment flows and economic growth, but it also undermines the viability of the state-building effort in post-conflict states.   It also interferes with democratic and constitutional norms, while it eats into public trust, further undermining the legitimacy of the government.   He goes on to say that in corrupt environments, general crime, human rights abuses and violence are more acute than in more transparent systems of government.   In the meantime, the international community and donor agencies have become more involved and proactive in anti-corruption initiatives in a number of post-conflict states.   This emanates from a desire to reduce misappropriation of donor assistance to further strengthening the effectiveness of this assistance and promoting organizations’ reputation.

Hence, in recent years, foreign governments have increasingly opted to use their leverage with the purpose of deterring corruption.   These efforts include: imposition of conditionality on aid; imposition of rules regarding the usage of economic aid; and diplomatic pressure, in the form of economic sanctions, on non-abiding states.   Per points out that leverage can take a number of forms, including economic (investment, credit and assistance); social (tourism, Diaspora communities, and elite education in the West); geopolitical (ties to Western governments and organizations); communication (cross-border, Internet connection, telecommunications and Western media penetration); and transnational civil society (ties to churches, nongovernmental organizations and party organizations).

In looking at attempts to reform the judiciary, Per also points out in his paper that the High Representative took a decision in 1999 to promote the introduction of a reformed structure for judiciary appointment and dismissal, designed to limit political influence over these matters.   This unprecedented attempt at restoring integrity in the system came as a result of endless steps by the former judiciary to implement reforms.   However, following a painful experience, the High Representative became fully aware of the incompetence and extensive corruption that plagued the former judiciary, following the cessation of hostilities, in 1995.

Following this decision to purge the former Bosnian judiciary, ad hoc committees of prosecutors and local judges were formed, by 1996, to help draft the legal instruments that would provide for the new structure.   Following months of deliberations, they eventually helped pass the RS Parliament of the Law on Courts and Courts Service; the Law on Public Prosecutor’s Office; as well as the Law on Judicial and Prosecutorial Service.   These laws, within this new structure, help to remove the Judiciary appointment and dismissal from the hands of political parties by giving them to the impartial and competent Bosnian prosecutors and judges from outside the political arena.

However, the process was marred with increasing difficulties and hostilities at the implementation level, as the High Representative came to realize.    The executive and organs of government vehemently resisted the action taken by the High Representative to reform the judiciary, because of the perceived loss of income and power from the process.   The political elite made it increasingly more difficult for councils and commissions to recruit competent staff, secure adequate funding, and perform other important functions.   Additionally, the processes lost the initial enthusiasm that marked their beginning.

Consequently, the High Represented began to take steps, as early as 2000, to establish a new international agency - called the Independent Judicial Commission for Bosnia and Herzegovina (IJC) - that could more forcefully promote important judiciary reforms.    The IJC was tasked with ensuring proper implementation of the new judiciary appointment, discipline, and dismissal procedures.   Per points out that what is different about the IJC - that sets it apart from other failed initiatives at curbing corruption and reforming the judiciary - lies in the power vested in the Director of the IJC.   Per points out that the Director has the power to impose new legislation or order removal of officials who were found to obstruct the reform process, including prosecutors and judges.   In addition, the High Representative introduced a reformed salary structure for judges and prosecutors so as to dissuade them from accepting bribes and/or resorting to other corruptive behaviour.

In the second part of his paper, Per stresses that while the international community was late in realizing the importance of the judiciary to peace-building efforts in BiH, donor agencies, set to assist Bosnians to reform their judiciary, were conceivably unaware of the extensive corruption which has hampered the work of the country’s courts since the end of hostilities, in 1995.   More disturbingly, it was not until 1999 that the international community began to admit that the problems of corruption in the judicial organs were the fault of both local Bosnians and foreigners alike.  

In summary, Per concludes by stating that judiciary reforms by the international community were in fact run on a trial-and-error basis.   The dismal failure to offer ownership of the process to the country’s political elites prompted the High Represented to internationalize the process.   It is yet to be seen whether judiciary reform will in fact make a dent on corruption in government over the long haul.