CHALLENGES TO RECONSTITUTING CONFLICT-SENSITIVE GOVERNANCE INSTITUTIONS AND THE PUBLIC SERVICE CASE OF BOSNIA AND HERZEGOVINA

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1 Jakob Finci, Director Civil Service Agency Bosnia and Herzegovina CHALLENGES TO RECONSTITUTING CONFLICT-SENSITIVE GOVERNANCE INSTITUTIONS AND THE PUBLIC SERVICE CASE OF BOSNIA AND HERZEGOVINA Background The most important events in last fifteen years for Bosnia Herzegovina were the referendum with decision of the Bosnian citizens to vote for independence from Socialist Federal Republic of Yugoslavia (held on 29 February 1 March 1992), the war that erupted after that event, and finally the signature of the Dayton Peace Accord negotiated in Dayton Ohio, and signed in Paris on December 14, Dayton Peace accord, with several annexes, includes also in Annex IV, the new Constitutional arrangement for Bosnia Herzegovina, and after this, the state is frequently called Dayton s Bosnia, distinguishing the existing situation from the past period. Special powers in Dayton Peace Agreement were given to the institution called the Office of the High Representative (OHR), representing the international community in Bosnia Herzegovina, and being the ultimate power in the country. The OHR were given, by the Peace Implementation Council, what are colloquially known as Bonn Powers, after the meeting that took place in Bonn, Germany in late At the time, the principal international actors involved in the peace-building process in Bosnia Herzegovina decided to endow the OHR with authority to remove all obstacles to peace implementation and development. These powers, among other things, allow the high representative to remove any local official, including directly elected politicians, whom OHR deems an obstruction to the peace process. Consisting of two entities, or better to say divided into two entities Republika Srpska and Federation of Bosnia Herzegovina, the State is has the official name remained just Bosnia and Herzegovina (BiH) without any prefix. The unsolved part in Dayton s agreement was a status of town Brcko on the northern border of Bosnia, and after a long arbitration process, decision was made to declare Brcko District of Bosnia Herzegovina with full independence from both entities, and under the supervision of the State institution and State laws, with ample self rule. As on the state level just a few basic laws have been adopted, District adopted special local laws, under strict supervision of the Office of the High Representative. General elections have been held in 1996, 1998, 2000 under the strict supervision of OSCE, till 2002, when for the first time the Bosnian government has organized 1

2 elections, with international monitors controlling the electoral process. The last general elections took place in October From the first democratic elections in November 1990, three main political parties on each of the elections have been SDA (Party of Democratic Action primarily with main Bosniack Muslim followers), SDS (Serb Democratic Party with Serbian voters behind it) and HDZ (Croatian Democratic Union covering Croatian population in Bosnia Herzegovina). From independence, Bosnia Herzegovina was accepted as a full fledged member of United Nations, and in 2002, the country become also member of the Council of Europe. In the year 2006, Bosnia joined the Partnership for Peace, and in 2005, started negotiations with European Union on Stabilization and accession agreement which was not signed until the present. Also, negotiations with WTO are underway. The Head of State in Bosnia and Herzegovina is a three-member Presidency, one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska. Parliamentary system of Bosnia Herzegovina is bicameral, with House of Representatives comprising 42 members and House of People with 15 delegates. Passive and active voting right is given to every citizen over 18 years. Persons with dual citizenship may vote in Bosnia and Herzegovina, only if Bosnia Herzegovina is their country of residence. In the House of Representative, two-thirds of the delegates, i.e. 28 of 42 should be elected in the Federation of Bosnia and Herzegovina, and one-third, i.e. 14 in Republika Srpska. The House of People is comprised of 15 delegates, two thirds from the Federation, including five Croats and five Bosniacs, and five Serbs are elected in Republika Srpska. The Croat and Bosniac Delegates shall select delegates from the Federation respectively, and Delegates from Republika Srpska shall be selected by the National Assembly of the Republika Srpska, without a chance for Serbs from the Federation or Croats and Bosniacs from Republika Srpska to be elected. Other citizens, who are declaring them selves in different way, are not eligible to be elected in the House of People. Members of the Council of Ministers consist of the Chair and eight Ministers. They should be from different constituent people, and include three Bosniac, three Serbs and three Croats. Provision in the Law of the Council of Ministers reads that if none of Ministers or deputies is from the group of Others, then the Secretary General of the Council of Ministers should be from the group of Others. However, this is not the case this days. 2

3 The Chair is appointed by the Presidency, and he appoints the Ministers and Deputy Ministers. The Council appoints between the Ministers, two who become Deputy Chairs, from different constituent people than a Chair. The Chair also has the power to dismiss the Minister or deputy, but this power was not used till now. Also, each Minister or Deputy can resign without explanation. This is a main picture of Bosnian political scene after the end of this cruel war, which cost this small country with more that victims, a lot of war crimes, and crimes against humanity, and even a crime of genocide which was committed in Srebrenica in July of So, given this background, the next step was, after the Dayton Peace Accord was signed, to restore the functions of a normal democratic state, on our way toward Euro- Atlantic integrations, including European Union and NATO. Challenges to Reconstituting a Democratic State We started with lustration the vetting process of state dignitaries, including police, judiciary and civil service. Vetting of the Police Of the two vetting experiences, the vetting of police proved the most challenging. Police officers were deployed as soldiers during the 1990s wars, often serving at the front lines of ethnic cleansing alongside military and paramilitary battalions. A thorough purging of the country s police forces was, therefore, necessary in the post-dayton era. Helpfully, the Dayton Accords provided that civilian law enforcement agencies would have to operate in accordance with internationally recognized standards and with respect for internationally recognized human rights and fundamental freedoms. 1 It also required the parties to the Agreement to ensure the prosecution, dismissal or transfer of police officers and other civil servants responsible for serious violations of minority rights. 2 By the end of the war, there were tens of thousands of police officers in the Federation and the RS far more than at the beginning of the wars and far more than are needed in a democratic state the size of BiH. In the early post-dayton years, police officers continued to operate with relative impunity in ethnically homogeneous forces that served nationalist agendas. Although there were some early efforts by the UNMIBH to vet police in the Federation, the results were disappointing and were ended by In the RS during the same period (i.e., ), there was essentially no vetting at all due to resistance by RS authorities. Subsequent vetting efforts were far more successful. The UNMIBH Human Rights Office established a fifty-person Local Police Registry Section made up of 1 Annex 4, Constitution of Bosnia and Herzegovina (Art. III Para. 2(c)) and Annex 11, Agreement on the International Police Task Force (Art. I Para. 1). 2 Annex 7 Art. I Para. 3(e). 3

4 international police officers, local lawyers and administrators, and two UN professional staff, all of whom were supported by the Human Rights Office and by two ICTY liaison officers. The vetting process itself consisted of three steps: mandatory registration (which involved completion of a detailed registration form), pre-screening (which in most cases resulted in provisional authorization to continue law enforcement work) and certification (which involved more extensive background checks, performance monitoring and a final determination on whether there were grounds for suspicion of wartime violations). Anyone decertified was barred from serving in law enforcement anywhere in BiH. Decertification decisions were subject to an internal appeal only and no oral hearing was provided. In the end, approximately two thirds of those vetted were granted provisional authorization to exercise police powers. Of those provisionally authorized, over 90% were granted full certification. 3 Though generally regarded as successful the police forces are smaller and more diverse now, and attacks on minority returnees are less common public perceptions of the process appear to be mixed. The process has been criticized as having been too slow and too closed. Within the police service itself, opinion is less charitable. Many, but particularly those decertified, question the fairness of the procedures, and as many as 150 former police officers challenged their decertification in domestic courts after the departure of the UNMIBH. 4 Regrettably, the vague and non-legislated criteria employed by the UNMIBH, and the fact the vetting files were sent away for storage at UN headquarters in New York City, have complicated the resolution of these cases. In his March 2004 briefing to the Security Council, High Representative Lord Paddy Ashdown, discussing the legal challenges to certification, stressed that there was a danger that the UNMIBH s vetting efforts could unravel and endanger the rule of law. It is, however, rather late to sound such an alarm. The vetting procedure needed greater scrutiny during its operation. Vetting of the Judiciary The other major vetting process in BiH concerned the appointment of judges and prosecutors. In the early post-dayton years, the state of the judiciary was especially weak, given the absence of an independent judiciary during the prior communist era, the ensuing years of war, and the continuous influence of organized crime and nationalist leaders. In May 2000, the High Representative promulgated laws on judicial and prosecutorial services to improve the independence of both. 5 These laws established commissions comprising Bosnian judges and prosecutors who assessed the performance of their peers over a period of eighteen months. But the process was never adequately resourced and ended in failure. The vast majority of complaints were dismissed as unsubstantiated. 3 Report of the Secretary-General, U.N.S.C., U.N. Doc. S/2002/1314, Para. 11 (2 December 2002). 4 OHR, Speech by the High Representative for BiH Paddy Ashdown at the United Nations Security Council (3 March 2004), available online at The European Union Police Mission replaced the UNMIBH in The laws are available online at 4

5 In late 2001, the Independent Judicial Commission, the lead agency on judicial reform, developed a new strategy for reform. It aimed to reduce the number of judges and make the judicial and prosecutorial services more ethnically diverse through a formal reapplication and appointment process. Three High Judicial and Prosecutorial Councils one for each of the BiH, the Federation and the RS were created by the High Representative in The Councils are permanent bodies comprising, for the most part, elected and appointed members from the legal and judicial professions. The High Representative also appointed international members to serve during a transitional period. The Councils have jurisdiction to appoint, transfer, train, remove and discipline judges and prosecutors. Under the re-application and appointment process, judges and prosecutors were required to submit detailed application and disclosure forms which included, among other things, questions about wartime activities. A considerable number of complaints were also received from the public. Once a file was considered complete, a Council nomination panel would review the application, interview the applicant, and make a recommendation. Unsuccessful applicants could file requests for reconsideration. Because the re-appointment process concluded only a few months ago, it is too early to assess its overall impact. Some initial concerns may, however, be noted. The most significant concern is that the goal of restoring the multi-ethnic character of the judicial and prosecutorial services appears not to have been fully achieved, particularly in the RS where there was an insufficient pool of minority candidates. Another concern has to do with the limited nature of the investigations conducted into applicants alleged or suspected wartime activities. This leaves some doubt about the sufficiency of the purge. Lastly, the exceptionally high cost and staff size demanded by the procedure encouraged public criticism. On the positive side, however, the procedure has the virtue of permanence. With the completion of the re-appointment process, the Councils will continue to operate as the standing appointment and discipline bodies for judges and prosecutors, and will be run entirely by nationals of BiH. Civil Service The Law on Civil Service in the Institutions of Bosnia and Herzegovina, imposed by High Representative in May 2002, and after that adopted by the Bosnian Parliament, article 64 provise that all existing civil servants are subject of review process by the Civil Service Agency. The review is basically controlled to find out whether they have been appointed in accordance with Law on Public Administration, and do they fulfil requirements from this law. The process of verification of existing civil servants on the state level was completed by September

6 With all this activities it s clear that Bosnia and Herzegovina had finished the most important part of lustration and was ready for the next steps toward European integration. Finally in March 2003, three Prime ministers (State level, Federation of Bosnia and Herzegovina and Republika Srpska), signed in Brussels in front of the Peace Implementation Council, a joint statement, promising to citizens in Bosnia Herzegovina a reform of public administration service The main points (or pledges) in this reform are: 1. We will make public administration cost-effective and well organized, 2. We will ensure that the taxpayers money is spent economically and transparently, 3. We will ensure that the Civil Service is professional and representative of the citizens it serves by, 4. We will make public administration work in accordance with EU Best Practice, 5. We will ensure quality-driven and citizens-friendly public service. This reform is supervised by international institutions and the Government of Bosnia Herzegovina, and we hope that this should be finished by the end of Naturally, this is not an easy task, and we are trying to use best practice from other countries, but is not easy to find counties similar to Bosnia and Herzegovina. We know that this could be done only with joint efforts of all stakeholders in our country, with special role devoted to the UN family. The way is long, but together, we hope it will be success, and be a good example to countries that passed thru similar conflicts. Today we are learning from you, and let s hope that one day, other will learn from Bosnian example. Sarajevo, May The views expressed in this paper are those of the author and do not necessarily reflect the views of the United Nations. 6