CYIL 2014

320

KATEŘINA UHLÍŘOVÁ

CYIL 5 ȍ2014Ȏ

As is often the case in post-conflict situations, many local institutions in BiH

remained paralyzed several years after the conflict, which was also reflected by the

passivity of these institutions and local decision-makers. In the beginning, therefore,

international involvement was considered necessary in order to overcome that

stagnation.

In addition to the reluctance of the local institutions to initiate any

reforms or trigger prosecution of committed atrocities, other typical post-conflict

factors indicating a need of external assistance were present in BiH, such as serious

shortcomings in the whole justice system,

including a lack of personnel in general,

and lack of personnel trained in handling complex criminal cases in particular. There

were also concerns about the independence and impartiality of local prosecutors and

judges.

Last but not least, there was, as a remnant of the past communist regime, an

already weak rule of law tradition.

It is important to note that broad international involvement was not only considered

necessary but also possible as a result of the legal status of BiH. A strong role of the

Office of the High Representative (OHR)

made it possible to integrate various

international components into the domestic legal system of BiH regardless of any

resistance by local political representatives.

In 2003, the United Nations Security

Council passed Resolution 1503 endorsing the completion strategy of the ICTY.

different legal standards in place. This situation has negative implications for prosecution of crimes

under international law, especially at the cantonal and district courts. See K. Uhlířová,

supra

note 1,

p. 205. See also S. Popovic,

supra

note 10, p. 228.

‘The adaptation of the Bosnian jurisdiction to international rule of law standards and human rights

was an innovation that would not have been made without the participation of international jurists’:

A. Schröder, Strengthening the Rule of Law in Kosovo and Bosnia and Herzegovina: The Contribution

of International Judges and Prosecutors 19 (Berlin: Center for International Peace Operations, 2005).

R. Dicker, Letter to the High Representative for Bosnia and Herzegovina, Human Rights Watch

International Justice Program (7 December 2009).

See eg comments made by Schröder relating to the role of the judiciary during the communist regime:

‘Independence and impartiality of the judiciary were a dead letter. “Telephone justice” was the name

of the favored mechanism by which the ruling political party controlled judicial and prosecutorial

actions.’ Schröder,

supra

note 60, p. 17.

Competences of the OHR were well summarized by Ivanisevic: ‘In the face of continued political

obstruction by nationalist parties, in 1997 the OHR was endowed with special powers, commonly

referred to as the Bonn powers, including the capacity to dismiss local officials at any level or to impose

laws. The role of the OHR made BiH a de facto protectorate where international authorities carried out

nation-building and thousands of foreign soldiers guaranteed security. The high representative has also

been the EU’s special representative (EUSR) since 2002.’ For further information about the role of the

OHR see Article V of Annex 10 – Agreement on Civilian Implementation of the DPA.

This scenario can be clearly distinguished from Croatia and Serbia, where, as Josipović argues, such an

intervention into the domestic legal system would not be possible. Therefore, different approaches to

application of international (criminal) law by domestic courts in the former Yugoslavia can be traced.

See I. Josipović, Responsibility for War Crimes: Historical Roots and Recent Developments in I.

Josipović (ed.),

Responsibility forWar Crimes, Croatian Perspective-Selected Issues

(2005). See also S. Weill

and I. Jovanovic, War Crimes Prosecution in a Post-Conflict Era and a Pluralism of Jurisdictions: The

Experience of the Belgrade War Crimes Chamber, in E. Kristjánsdóttir, A. Nollkaemper, C. Ryngaert,

(eds.),

supra

note 1, pp. 241-267.

See also Annex IV of the DPA in which Article II(8) states: ‘All competent authorities in Bosnia and