 |
 |
 |
 |
 |
|
 |
 |
|
 |
 |
|
 |
 |
|
 |
||
Chicago International Dispute Resolution Association
Mediation in Bosnia and Herzegovina: A Second Application
The complex governmental structure was necessary to guarantee local autonomy for the three main ethnic groups. When the Federation was created in 1994, as part of the peace agreement between ethnic Bosniaks and Croats, it divided the areas under their control into autonomous cantons, along ethnic lines.18 Each Canton had its own executive, legislative, and judicial bodies.19 This was necessary given the high level of mistrust between the parties.20 This cantonal framework was then incorporated into the Dayton Accords regime after the 1995 peace agreement was signed.21 Mistrust between the RS and Federation negotiators led to a similarly decentralized State-level constitution for the two entities.22
Moreover, the Accords also provide for a UN-sanctioned institution, known as the Office of the High Representative (OHR), to serve as a sort of super-government to manage the implementation of the civilian aspects of the Dayton Accords.23 OHR has final authority to interpret the Dayton Accords.24 It has evolved into a large, internationally-run institution that coordinates international assistance efforts, re-organizes governmental structures, imposes new laws, amends pre-existing laws, and even terminates BiH government employees who are deemed obstructive.25 These conditions have allowed for a massive output of new laws and changes in the judiciary. However, what has been gained in efficiency has been lost in local contribution and acceptance. Many laws are passed without a great deal of local participation or input. The result is decent laws on paper, but poor implementation and observance.
III. THE COURTS OF BOSNIA AND HERZEGOVINA
The BiH judiciary is heavily influenced by both the Austro-Hungarian Empire’s26 and communist Yugoslavia’s legal traditions.27 However, its complicated and decentralized structure is a creature of the Dayton Accords. Each Entity has its own judicial court system. At the first level, the municipal courts in the Federation and the basic courts in the RS hear most first instance civil and criminal cases.28 At the intermediate level, the cantonal courts in the Federation and the district courts in the RS hear the appeals.29 The Federation and RS Supreme Courts hear appeals from the cantonal and district courts and serve as the highest courts of appeals for cases involving Entity law.30 Each Entity also has a Constitutional Court.31 The Brcko District has its own parallel court system.
At the State (i.e. national) level, the BiH State Court was first established in 2000.32 In addition to its administrative and appellate jurisdiction, the court has criminal jurisdiction to decide issues relating to economic corruption and war crimes, as well as certain matters brought under the limited state laws.33 BiH also has a state Constitutional Court that has exclusive jurisdiction to hear constitutional disputes between the Entities, between the state and an Entity, and between state institutions.34 The Court can also hear appeals from any other court when there are issues relating to the BiH Constitution.35 Finally, it is empowered to review any law’s compatibility with the BiH Constitution and the European Convention on Human Rights and Fundamental Freedoms.36
| previous page |
18. USTAV BOSNE I HERCEGOVINE [CONSTITUTION
OF BOSNIA AND HERZEGOVINA] (1994) preamble, translated in 33 I.L.M. 740
(1994) [hereinafter BOSN. & HERZ. CONST.]; Morrison, supra note 14,
at 147. back
19. BOSN. & HERZ. CONST. art. V. back
20. Morrison, supra note 14, at 146. back
21. Dayton Agreement on Implementing the
Federation of Bosnia and Herzegovina, Nov. 10, 1995, 35 I.L.M. 170 (1996).
back
22. Morrison, supra note 14, at 145-51. Morrison
states, “the constitution and its accompanying documents confirm
the fragility of the [then] situation and the difficulties that confronted
the negotiators . . .” Id. at 155. back
23. Annex 10 to the Dayton Accords, supra
note 8, at 147. back
24. Id. at 148. back
25. OHR was given sweeping powers at the
Bonn Peace Implementation Conference in 1997. See Bonn Peace Implementation
Conference 1997, Bosnia and Herzegovina 1998: Self Sustaining Structures,
conclusions (Dec. 10, 1997), http://www.ohr.int/pic/default.asp?content_id=5182.
back
26. The Austro-Hungarian Empire took administrative
control over the country in 1878. As an example, the Bosnian Criminal
Code of 1879 was modeled on the Empire’s Habsburg military code.
Steven W. Sowards, Twenty-Five Lectures on Modern Balkan History: Lecture
No. 12, Bosnia-Herzegovina and the Failure of Reform in Austria-Hungary,
Michigan State University (1996), http://www.lib.msu.edu/sowards/balkan/lect12.htm.
Austro-Hungary annexed BiH in 1908. The empire then broke apart at the
end of World War I and BiH became part of the new “Kingdom of Serbs,
Slovenes and Croats,” later renamed “Kingdom of Yugoslavia.”
See generally MALCOLM, supra note 5. back
27. AMERICAN BAR ASSOCIATION/CENTRAL AND EAST EUROPEAN
LAW INITIATIVE, JUDICIAL REFORM INDEX, BOSNIA AND HERZEGOVINA, 1 (2001)
[hereinafter ABA/CEELI JRI]. ABA/CEELI is a public service project of
the American Bar Association that advances the rule of law in the world
by supporting the legal reform process in Central and Eastern Europe,
Eurasia, and the Middle East. ABA/CEELI has had an office in BiH since
1995. More information about ABA/CEELI is available at http://www.abanet.org/ceeli/home.html
(last visited Mar. 1, 2006). After BiH independence, the default laws
in place were those from Yugoslavia. Over the following ten years, some
of these laws have been amended or repealed but the communist Yugoslav
influence remains. See infra note 98 and Part V. back
28. ABA/CEELI JRI, supra note 27, at 2. back
29. Id. These Cantonal and District Courts can also
hear certain first instance criminal cases. back
30. Id. back
31. Id.back
32. ZAKON O SUDU BOSNE I HERCEGOVINE [LAW ON THE COURT
OF BOSNIA AND HERZEGOVINA], 29 Službeni Glasnik Bosne i Herzegovine
(2000), amended by Službeni Glasnik, Nos. 24/02, 3/03, 37/03, 42/03,
4/04, 9/04, 35/04, 61/04. back
33. Id. arts. 13-15. back
34. ABA/CEELI JRI, supra note 27, at 1. back
35. Id. back
36. Id. back
Peter V. Baugher,
President
One South Wacker Drive, Suite 2800, Chicago, IL 60606 USA
312-409-1373 (Telephone), 312-701-9335 (Facsimile),