Introduction: Judiciary and War

An inefficient judiciary and the unreasonable length of court proceedings are not problems peculiar to Bosnia and Herzegovina. In addition, certain violations occurring in the war years may be excused considering the stressful individual and real circumstances under which the judiciary was functioning. During the war, the administration and judiciary, nevertheless, “slipped in” to the war without significant resistance or opposition so that they, “as other means of war”, were instrumentalised or available to serve the same purpose. For the mentioned reason, it would have been surprising had the court preserved its independence during the armed conflict. Furthermore, numerous decisions and judgments passed by independent institutions had no real effect in practice since they could not be enforced due to a rise of national intolerance among citizens or a lack of support by the independent enforcement authorities. Numerous examples revealing the lack of judicial protection⁹⁰⁷ confirm that the rule of law in Bosnia and Herzegovina did not have the individual and institutional forms, as necessary, even after the end of the war activities. Salvisberg⁹⁰⁸ concludes that, primarily, the police and the administration as well as the judiciary were chiefly under the nationalist parties’ control or power so that the exercise of individual rights, in principle, was conditioned on adequate ethnic affiliation. Numerous rights, nominally speaking, enumerated in the extensive catalogue of human rights and freedoms safeguarded under the Constitution, remained de facto without effective protection because of the lack of independent courts, administrative bodies and police. Thus, for example, because of the weakness of the written law or the laws applied by the highest courts of this country, i.e., adjusted to real life situations, a legally binding decision on eviction, enacted in favour of a member of a minority people and against a member of a majority people in a certain place, obviously was not enforced despite many attempts and the additional support of the international community.⁹⁰⁹ Human rights were respected and complied with when they corresponded to ethnic constellations. Human rights implied an ethnic connotation,⁹¹⁰ so that their essence was “stolen”. The 2002 Human Rights Report by the International Crisis Group was appalling. Moreover, in a number of its reports, the International Crisis Group confirmed that the situation in the BiH judiciary at all levels and in all parts of the country was poor and pessimistic. It may be said that the establishment of the Brčko District of BiH was the only successful reform process.⁹¹¹