Mediation in Bosnia and Herzegovina: A Second Application - 1

Originally published in YALE HUMAN RIGHTS & DEVELOPMENT L.J. [Vol. 9 2006] pp. 132 - 165
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Note from the Field

Steven Austermiller1

A nation born out of mediation turns to mediation again, this time to rescue its judiciary and promote the rule of law. The country known as Bosnia and Herzegovina was created out of U.S. mediation efforts in 1995. Ten years later, the peace has held but a new set of challenges has emerged. The nation now plans to use mediation to improve judicial efficiency, and promote democracy and the rule of law. This article reviews the nation’s new mediation laws and their potential impact on the judiciary and society generally. Drawing on his mediation experiences in private practice and his work managing rule of law projects in Bosnia and Herzegovina, the author concludes that the new mediation laws are an excellent start but need to be amended. The author further concludes that if given sufficient time and proper implementation, mediation can improve judicial efficiency and democracy in Bosnia and Herzegovina.



This article discusses the new Bosnia and Herzegovina (BiH) mediation laws and their potential impact on the BiH judiciary and the rule of law. Section One provides a brief historical introduction to this multifaceted country. Section Two discusses BiH’s complicated governmental structures that include thirteen constitutions and a heavily decentralized power structure. Section Three reviews the judicial landscape and current issues. While much has already been written about the war in BiH and its implications, little has been written about the more mundane judicial issues that now affect its citizens. Section Four discusses how mediation can improve the BiH justice system. While mediation is usually prescribed for judicial inefficiency it may also help promote democracy by helping to build a culture of compromise. Section Five reviews the new laws that regulate mediation in BiH courts and concludes that despite some needed amendments, the laws should help promote out-of-court settlements. Section Six sets forth recommendations that include changes to the current laws and important implementation parameters. The article concludes that mediation has the potential to make a significant contribution to judicial efficiency and democracy in Bosnia and Herzegovina.


BiH has a variegated ethnic and religious composition that is made up of three main groups—Serbs, Croats, and Bosniaks. Although the groups share many cultural traits, such as language, cuisine, music, etc., they are divided along religious lines.2 The Serbs are largely Orthodox Christians, the Croats Catholics, and the Bosniaks Muslims.3 When Yugoslavia started to dissolve in the early 1990s, people tended to turn to their ethnic groups for protection. Bosnia and Herzegovina was one of the six autonomous republics that made up Yugoslavia.4 In 1992, following two other republics’ declarations of independence, the Yugoslav Republic of Bosnia and Herzegovina declared independence and the unfortunate consequence was war.

In 1995, the United States sponsored high-level, mediated peace talks that brought about a cease-fire and ultimately, a peace agreement. The mediation process involved representatives from Serbia, Croatia, and BiH traveling to a U.S. Air Force Base in Dayton, Ohio to negotiate an end to the war and a post-war solution.5 Assistant Secretary of State Richard Holbrooke mediated.6 For three weeks, the parties remained on the base while the United States attempted to broker a settlement.7 Through this mediation process, the parties agreed to establish a new state with a unique constitutional structure. The agreements, signed in December 1995 and known as the Dayton Accords, established present-day Bosnia and Herzegovina.8

The mediation was successful thanks to a number of exogenous factors, including the international application of military force, the explicit threat of future use, and the significant reversal of Serb military victories on the ground in the fall of 1995.9 However, the parties themselves all compromised at Dayton. The Bosnian Serbs and Croats gave up their respective goals of union with Serbia and Croatia, or, alternatively, independence. The Bosnian Muslims gave up their goal of a unified, sovereign state, in favor of a confederal state, with minimum central authority and highly autonomous, ethnically-dominated regions.10 While many lament the difficulties that the Dayton Accords present to BiH’s future, the war-time leaders’ mediation-induced compromises made this peace possible. Perhaps in BiH, mediation will eventually be associated with the imperfect, but peaceful resolution of conflict.


Under the Dayton Accords, BiH is essentially divided into two “Entities”, the Republica Srpska (RS) and the Federation of Bosnia and Herzegovina (Federation).11 The RS is the predominantly ethnic Serbian half of the country that occupies the north, east, and south-east portions of BiH in the shape of a reverse crescent. The Federation, established in 1994, before Dayton, comprises mainly ethnic Bosniaks and Croats, and occupies the central and western parts of the country. In addition, there is the autonomous Brcko District, a small area of land in and around the city of Brcko, in the northeast corner of the country.12

The Dayton Accords established the general governmental structure of the new BiH state. In Annex 4 to the Accords, the parties agreed to a federal constitution.13 The Accords have worked in the sense that ten years on, the parties have kept the peace and have slowly begun to build a BiH state. On the other hand, the Constitution and some of the other Dayton annexes have created an impossibly complicated and cumbersome governmental structure. One scholar has written: “[t]his new Bosnian constitution makes the American Articles of Confederation of two centuries ago look like a centralized, unitary form of government.”14 Indeed, BiH now has thirteen constitutions—one for the BiH State, as provided in Annex 4, one for each Entity and ten cantonal constitutions within the Federation.15 The State Constitution16 devolves most governmental authority to the Entities. While the current political trend is for greater centralization in governmental power, as long as the Dayton Accords remain the supreme law of the land, this de-centralized structure will remain.17

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.


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

The BiH judiciary faces myriad problems. Education and training of judges is substandard.37 Court contempt, subpoena, and enforcement powers are underutilized or insufficient.38 Outside of Sarajevo and Brcko, funding levels are “woefully inadequate.”39 Courtrooms and other facilities are “dilapidated and in need of repair.”40 Many of the courts carry substantial debts.41 But, perhaps the two most significant issues are inefficiency and corruption.

The BiH court system simply moves too slowly.42 A recent World Bank study43 indicates that it takes almost two hundred days, on average, to enforce a judgment and only about twelve percent of local firms characterize the courts as “quick.”44 These scores were lower than for many neighboring transition countries like Macedonia.45 One commentator noted that the courts are generally distrusted by business leaders.46 One reason for court inefficiency is that judges have to work within an environment where substantive and procedural laws are constantly changing.47 Because they cannot access new legislation easily and there is no effective system for identifying and organizing changes,48 judges are understandably overwhelmed. Another reason for the inefficiency is that courts have no effective case filing and tracking systems.49 And finally, the system allows for excessive postponements of hearings.50 As a result of these inefficiencies, the BiH High Judicial and Prosecutorial Council (HJPC) recently reported that significant case backlogs have accumulated in many courts.51

Another serious issue is corruption, or at least the perception thereof. The ABA/CEELI Judicial Reform Index survey found that “[i]mproper influences on judicial decisions are a significant problem, and they include bribes, requests for specific outcomes by friends and colleagues of judges, ex parte communications, and political pressure, most of which is exerted indirectly.”52 In addition, while ethics codes are in place, they are not “widely understood or followed.”53 In the World Bank’s surveys of fairness and honesty, the BiH courts ranked in the bottom half of the region, with only around a quarter of respondents assessing the courts as either fair or honest.54 The most compelling finding was that in 2002 BiH ranked number one in all of Europe and Eurasia for the frequency of unofficial payments and gifts made when dealing with courts.55 This was in spite of the fact that BiH had tripled the wages of judges.56 Transparency International found that BiH citizens rank the judiciary as the fourth most corrupt institution in the country (ahead of, inter alia, the customs, medical, and education systems)57 and an alarming fifty-four percent think most or almost all of the judges are involved in corruption.58

The consequences of a dysfunctional court system cannot be overstated. Individuals and businesses cannot effectively enforce their contractual rights and as a result, economic activity suffers. One study commissioned by the European Bank for Reconstruction and Development (EBRD) found that legal institutions’ effectiveness in enforcing laws is more important for foreign investment in transition economies than is the establishment of modern, pro-business laws on the books.59 In BiH, the perception and reality of weak enforcement of property and other rights has hurt economic development.60 The World Bank survey ranked the BiH judiciary second in the Europe and Eurasia region for being an impediment to doing business.61

In addition, a dysfunctional court system can also prevent individuals from enforcing human rights they have been granted in their laws.62 The BiH Constitution is unique in that it explicitly incorporates the rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms (European Convention) and declares that these rights “have priority over all other law.”63 In theory, this means that the highly developed case law of the European Court of Human Rights (ECHR) is the supreme law of the land.64 However, the enforcement of these rights in BiH is questionable. For instance, Article 6 of the European Convention guarantees the right of all persons to a “fair and public hearing within a reasonable time . . . ”65 It is likely that the slow administration of justice in BiH is violating citizens’ human rights under this provision.

1 Until February 2006, Steven Austermiller was the Country Director for the American Bar Association/Central European and Eurasian Law Initiative (ABA/CEELI) in Bosnia and Herzegovina. There, he managed programs relating to, inter alia, mediation, legal education, bar reform, judicial training, and anti-corruption policy. He has also worked on ABA/CEELI projects in other countries. He currently manages an ABA project in Cambodia. Prior to his field work, he was a partner at Pedersen & Houpt, a Chicago law firm. He is a graduate of Northwestern University (B.A., Political Science) and Northwestern University School of Law (J.D.). The views expressed in this article are his own and are not necessarily those of ABA/CEELI, the United States Agency for International Development (USAID), or any other organization. The author wishes to thank Nebojsa Milanovic, Sanin Muftic, Oliver Babson, Nora Staal, and, most importantly, Amy Antoniades Austermiller for their kind and essential assistance. back
2. Historical inter-ethnic strife also serves to reinforce ethnic divisions. Katherine G. Southwick, Note, Srebrenica as Genocide? The Krstic Decision and the Language of the Unspeakable, 8 YALE HUM. RTS. & DEV. L.J. 188, 192 (2005). back
3. The last census was in 1991, prior to the war. Bosniaks accounted for 43.5% of the BiH population, Serbs 31.2%, and Croats 17.4%. High Judicial and Prosecutorial Council of BiH, Godišnji Izvještaj Visokog Sudskogi Tužilackog Vijeca Bosne i Hercegovine za 2004. Godinu [Annual Report of the High Judicial and Prosecutorial Council of BiH for 2004], ch. 2 (May 4, 2005) [hereinafter HJPC], available at However, there was substantial intermarriage among these groups before the war and many people did not fit neatly into any ethnic category. back
4. The six Yugoslav republics were: Bosnia and Herzegovina, Slovenia, Croatia, Serbia, Montenegro, and Macedonia. back

5. NOEL MALCOLM, BOSNIA, A SHORT HISTORY 267-68 (Pan Books ed., 2002). back
6. See RICHARD HOLBROOKE, TO END A WAR (Random House ed., 1998). back
7. Jonathan D. Greenberg, Does Power Trump Law?, 55 STAN. L. REV. 1789, n. 102 (2003).(citing HOLBROOKE, supra note 5) One historian claimed that sleep deprivation was one of the U.S. mediation tactics. MALCOLM, supra note 5, at 268. back
8. General Framework Agreement for Peace in Bosnia and Herzegovina, Dec. 14, 1995, Bosn. & Herz.–Croat.– Yugo., 35 I.L.M. 75 [hereinafter Dayton Accords]. back
9. Elizabeth M. Cousens, Making Peace in Bosnia Work, 30 CORNELL INT’L L.J. 789, 792-97 (1997); accord, Greenberg, supra note 7, at 1811. back
10. See discussion infra Part II. back
11. Dayton Accords, supra note 8, annex 2, at 112. back
12. Brcko was a strategically located city that both sides claimed during the Dayton mediation. The parties agreed to delay the final status of Brcko and submit it to international arbitration. Dayton Accords, supra note 8, annex 2, art. V, at 113. Eventually, the arbitration panel ruled that it was to become the autonomous Brcko District and not part of either Entity. Arbitral Tribunal for Dispute over Inter-Entity Boundary in Brcko Area: The Federation of Bosnia and Herzegovina v. The Republika Srpska, (Final Award), 38 I.L.M. 534 (1999), available at back
13. Dayton Accords, supra note 8, annex 4, at 117. back
14. Fred L. Morrison, The Constitution of Bosnia-Herzegovina, 13 CONST. COM. 145, 145 (1996). back
15. These Byzantine structures look even more inappropriate given the fact that BiH has fewer than 3.5 million people and a smaller land mass than West Virginia. back
16. Under the Dayton Accords, BiH has adopted a peculiar political nomenclature. The term “State” is used in BiH to describe something national or federal. For instance, the “State Court,” the “State Constitution,” and the “State Presidency” all refer to the national BiH institutions. In contrast, the Republika Srpska and the Federation of Bosnia and Herzegovina institutions represent the constituent entities, which in U.S. parlance might be called “states.” back
17. In 2003, the international community helped BiH establish a State-level Ministry of Justice (MOJ). However, to date, the State MOJ has yet to gain much authority and the two Entity MOJs run most of the courts, see infra Part III. Centralization is a slow and difficult political process because the RS population and leadership are uncomfortable losing power in a majority Bosniak country. Generally, they prefer a weak, de-centralized structure with extensive Entity autonomy. back

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), 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), 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 (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 37. Id. at 6, 9. However, the Judicial and Prosecutorial Training Centers recently mandated that all BiH judges receive four days of continuing education each year. This is a good start. In addition, there are a number of programs funded by CIDA (Canadian Intl. Dev. Agency), USAID, Council of Europe, the European Union, and others that focus on helping the Entity Judicial and Prosecutorial Training Centers develop greater capacity for future
programming. back
38. Id. at 15. back
39. Id. at 16. ABA/CEELI considered this to be a “significant impediment to judicial efficiency.” Id. Most courts also lack appropriate office equipment and computers. Id. at 32. The European Commission found that “[w]ith some very limited exceptions, the level of funding for the courts is inadequate and a significant impediment to judicial efficiency. Some courts do not have sufficient funding to pay for basic services such as electricity, heating, telephones or postage, and these services are frequently cut off for failure to pay the bills.” EUROPEAN COMMISSION, FUNCTIONAL REVIEW OF THE BIH JUSTICE SECTOR 63 (March 2005), available at [hereinafter European Commission]. back
40. ABA/CEELI JRI, supra note 27, at 18. At the trial level courts, “most judges hold hearings in their cramped offices. . . [i]t is not uncommon for two or three judges to share a single office.” Id. The High Judicial and Prosecutorial Council of BiH stated that “most courts and prosecutors’ offices are in quite a bad state of disrepair, with no investment having been made in them since their construction some 20 to 30 years ago.” HJPC, supra note 3, ch. 1.3. Moreover, the courts are funded in a very unequal fashion. The European Commission observed that “[b]y travelling only a few kilometres, a citizen of BiH can go from a (relatively) modern and adequately maintained court, where cases are able to be processed in a reasonable amount of time, to a court without heat or electricity, where cases can wait years to be heard and where there are no funds to pay for delivery of documents or for court appointed defense counsel or expert witnesses.” European Commission, supra note 39, at 73. back
41. HJPC, supra note 3, ch. 6.2.1. The HJPC calculated a total of over twenty-two million KM (fifteen million dollars) in accumulated court debts as of the start of 2004, which was twenty-seven percent of the courts’ total annual budgets. One reason for the large debts is that the courts had to pay for large increases in judge and prosecutor salaries. Because their budgets did not increase, the courts paid these salaries from other budget line items for operational expenses, and these other expenses then went unpaid. European Commission, supra note 39, at 63. back
42. The official case filing and tracking systems are not very useful. ABA/CEELI JRI, supra note 27, at 31. However, this dearth of quantitative data on judicial efficiency is common for a developing judicial system. See Maria Dakolias, Court Performance Around the World: A Comparative Perspective, 2 YALE HUM. RTS. & DEV. L.J. 87, 89 (1999). back

[hereinafter World Bank Survey]. (Note: if the above link isn't clickable for you, you'll need to cut and paste the entire address into your browser with no spaces - Webmaster). The survey draws upon various sources, including a joint EBRD-World Bank Business Environment and Enterprise Performance Survey, the ABA/CEELI Judicial Reform Index surveys, an EBRD Legal Indicator Survey, the World Bank Doing Business database, the World Economic Forum’s Executive Opinion Survey, a World Values Survey, and The Centre for the Study of Public Policy’s Public Opinion surveys. back
44. Id. at 31-33 (referencing 2002 figures). back
45. Id. back
46. Natalie Rougeux, Comment, Legal Legitimacy and the Promotion of Small Business in Sarajevo, 37 TEX. INT’L. L.J. 177, 179 (2002). back
47. An example of the massive legal changes can be seen in the 2005 OHR Mission Implementation Plan. There, OHR identifies the following legal changes for 2005:
“Establish modern civil, commercial, and criminal codes and procedures, measures for the security of judges and witnesses, regulations for administrative disputes, plus laws governing obligation and enforcement of civil judgments. Additionally, proper appellate procedures and addressing complex trans-border or cross-Entity criminal matters, such as illegal immigration and money laundering, will be put in place.”
Office of the High Representative, OHR Mission Implementation Plan, task 1.1 (Mar. 7, 2005), available at back
48. In most courts, only the presidents and department heads receive copies of the official gazettes, which is the only place the text of the laws are published. ABA/CEELI JRI, supra note 27, at 32-33. back
49. Id. at 31-32. back
50. See Rougeux, supra note 46, at 185-87. back
51. HJPC, supra note 3, ch. 1.1. back
52. ABA/CEELI JRI, supra note 27, at 24. back
53. Id. at 25. back
54. World Bank Survey, supra note 43, at 37-38. back
55. Id. at 41. back
56. Amazingly, the survey found that after the tripling of judges’ salaries, the prevalence of unofficial payments at courts increased by roughly sixty percent. Id. at 40-41. See also Rougeux, supra note 46, at 185-89. back
57. Transparency International, Global Corruption Barometer 2005, annex 1, tbl. 9 (2005), available at back
58. Transparency International, Corruption Perception Study, Bosnia And Herzegovina, at 73- 77 (2004), available at back
59. Katharina Pistor et al., Law and Finance in Transition Economies, 8 ECON. TRANSITION 325, 326 (2000), available at back
60. See, e.g., Rougeux, supra note 46, at 179, 185-90. The BiH courts’ inefficiency may actually contribute to their corruption by increasing incentives to “speed up the process through extrajudicial methods.” Id. at 188. For a general discussion on the relationship between property rights and economic development, see HERNANDO DE SOTO, THE MYSTERY OF CAPITAL: WHY CAPITALISM TRIUMPHS IN THE WEST AND FAILS EVERYWHERE ELSE (Basic Books 2000). back
61. World Bank Survey, supra note 43, at 48-49. back 62. See Dakolias, supra note 42, at 88. back
63. BOSN. & HERZ. CONST., supra note 18, art. II, § 2. back
64. Morrison, supra note 14, at 152. back
65. Convention for the Protection of Human Rights and Fundamental Freedoms, Nov. 4, 1950, art. 6, 213 U.N.T.S. 221. An updated version of the treaty and protocols is available from the European Court of Human Rights, back

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