Criminal Justice Reform Agencies

Metings and Interviews

In spite of the problems highlighted in chapter 7, reform and reconstruction of the prison systems of Bosnia and Herzegovina (BiH) have received neither the same degree of international attention nor investment as police and court services. The matrix of twenty agencies engaged in rule of law and criminal justice reform projects in BiH in August 2004 in appendix 2 gives a snapshot of intervention. These agencies included some with mandates specific to BiH (e.g. Office of the High Representative and the European Union Police Mission), branches of the UN and EU, non-governmental organisations and charitable foundations, and nationally-run development agencies from the US and Europe. Of the twenty organisations, thirteen were involved in police reform, sixteen in the reform of judicial systems, yet only four in prison based programmes of reform at the time it was produced: the Office of the High Representative (OHR) was seeking a site for a pre-trial detention facility to serve the state-level Court of Bosnia and Herzegovina (Sud BiH); the Organisation for Security and Cooperation in Europe (OSCE) was monitoring pre-trial detention as part of a mission to supervise the implementation of new Criminal Procedural Codes; only the Council of Europe and the UK Department for International Development (DFID) were engaged with reforms which dealt explicitly with the provision of facilities for convicted and sentenced inmates. Subsequent to the production of that matrix in August 2004, the Canadian International Development Agency/Agence canadienne de développement international (CIDA/ACDI) has joined reform projects in cooperation with other donors, and a newly formed Office of the Registrar for War Crimes and Organised Crime has been involved in the management of a state-level pre-trial detention unit and in planning a state-level detention facility to hold both pre-trial and sentenced inmates. Aside from such organisations actively working with BiH authorities to develop the country's prison systems, human rights NGOs such as Amnesty International, the Helsinki Committee, and Human Rights Watch have monitored and reported on conditions in BiH's prisons.

This chapter explores the work of the international community in BiH through three examples of agencies working alongside the domestic authorities to address some of the challenges facing BiH's prison systems as described in chapter 7.

Alongside fines, custodial sentences are the dominant form of punishment in Bosnia and Herzegovina (BiH). Under the 2003 Criminal Code of BiH, which served as a model for subsequent revisions of codes in the entities and Brčko district (see chapter 6), offenders can be punished with either a fine or up to 20 years imprisonment (Art. 40) or, exceptionally, up to 45 years (Art. 42.2). Community based penalties can replace custodial sentences of below six months (Art. 43.1), yet while the code provides for community sanctions, the infrastructure to realise these is not in place, and so this and the following chapter will focus primarily on those prisons under the authority of the ministries of justice of the Federation of Bosnia and Herzegovina (FBiH) and Republika Srpska (RS), and on tentative developments in the direction of penal provision under the state-level Ministry of Justice. Again the first chapter will highlight various challenges in the prisons sector which have accompanied transition, while the second will focus on international assistance and intervention. The two previous pairs of chapters, on police and courts in Bosnia and Herzegovina, were able to draw on a wide range of literature to locate those elements of the criminal justice field at the nexus of cross-cutting questions of state, democracy and legitimacy in the context of transition. Police, even in a reconfigured field of security governance, are seen as central to the state and their practices firmly linked to democracy. Courts were placed at the heart of the criminal justice field, legitimating those other elements of the field with routine recourse to the use of physical force, and providing a public space for the exploration of norms and values. The importance of these elements of the criminal justice field was reflected in the level of international attention they have received subsequent to the Dayton Peace Accords.

Punishment, and more specifically for the purposes of this chapter, imprisonment, come at the end of the chain, by which stage a number of important decisions have been taken earlier in the criminal justice process, ving the execution of the sentence to be carried out.

This book provides an analysis of processes of reform, reconstruction and restructuring in the criminal justice field in Bosnia and Herzegovina (BiH) in the years since it completed a violent secession from the Socialist Federal Republic of Yugoslavia (SFRY). The country is taken as an example of a transitional post-authoritarian society, having emerged from over forty years of single-party rule, as an example of a transitional post-conflict society, having come through nearly four years of brutal conflict between parties who continue to play a major role in the political life of the country; and, in the context of widespread change with the collapse of communist governments throughout Central and Eastern Europe, as a transitional economy, shifting from a more command oriented economy to a more liberalised market economy. These three dimensions of transition provide the background to a range of challenges faced in the criminal justice field and the subsequent governmental responses, including those of international governing bodies in BiH.

The lengthy process of the break-up of SFRY crystallised within months of the country's first multi-party elections when, in June 1991, Slovenia and Croatia declared independence. It continues, eighteen years on following the UN General Assembly's request for an advisory opinion from the International Court of Justice (ICJ) on the legality of the unilateral declaration of independence made by the Provisional Institutions of Self-Government of Kosovo (UNGA 2008; ICJ 2008). Disintegration has involved a series of conflicts, ranging from the short war between the Yugoslav People's Army (JNA) and Slovenian territorial defence units, to more complex and protracted conflicts such as those in Croatia and Bosnia and Herzegovina (BiH), between 1991 and 1995, involving the JNA, Croatian and Bosnian government forces, armies established by breakaway Serb entities in Croatia and BiH, and Croats in BiH, as well as other regional groups and irregular paramilitary units (see Malcolm 1996, chapters 15, 16 and epilogue). In Croatia, war ended in a decisive victory by government forces against the breakaway Republic of Serb Krajina. The conflicts in BiH ended formally but without definitive victory for any warring party on 14 December 1995, when representatives of three Yugoslav successor states gathered in Paris to sign the General Framework Agreement for Peace (GFAP).

Having explored the three main sectors of the criminal justice field in Bosnia and Herzegovina, and having examined a number of international interventions geared towards reform, reconstruction and restructuring within these sectors, it is now possible to revisit the four central questions defining the current research project:

• – What role does criminal justice reform play in a state-building exercise, in the particular post-conflict, post-socialist, and post-authoritarian context represented by Bosnia and Herzegovina?

• – To what extent do the demands of state-building projects shape criminal justice reform, and how does this differ across criminal justice sectors and how are these reforms seen to relate to one another in the context of a criminal justice system?

• – In a context which brings together a range of agencies with different backgrounds, priorities and working practices, how do different agencies approach criminal justice reforms within each sector, how do they relate to, and work with, relevant domestic political actors and institutions, and what obstacles do they meet in trying to implement reform programmes?

• – To what extent is the level of international intervention in BiH conducive to the ‘transfer’ of particular criminal justice policies and institutions or the ‘transplant’ of practices and models in criminal justice?

This final chapter will group the first two complementary questions under the heading of state-building, asking to what extent criminal justice plays a role in state-building and turning the question around to explore the impact of the demands of state-building upon criminal justice reform. Subsequently, the chapter builds on previous chapters which have drawn on a range of agencies including core multi-lateral civilian missions; other non-core multi-lateral bodies and bilateral aid agencies. The chapter examines how they seek to shape domestic policy given the range of different resources, powers and restrictions with which they operate in the general policy context of BiH and the particular criminal justice sectors in which they intervene. Within this, it is possible to examine the fourth question regarding the scope for policy transfer or legal transplants in a context of multi-national intervention in the criminal justice policy of a particular state.

At the risk of being accused of being voyeuristic, one must admit that countries that have gone through a period of major conflict are of considerable interest to students of criminal justice. In the course of the conflict atrocities are often committed, which evoke strident calls for ‘justice’, both from the parties to the conflict and, increasingly, from the international community. Much can be learnt by studying these responses and the grand attempts by the international community to make use of ad hoc international criminal tribunals and, more recently, the International Criminal Court as mechanisms for bringing a measure of justice into dealing with the aftermath of the conflicts.

Equally interesting, however, is the impact that major conflict has on the national criminal justice apparatus of the society in which it takes place. The pattern is that legitimacy of the national criminal justice apparatus is undermined and its efficacy greatly reduced. This provides an opportunity for the international organisations, national governments and non-governmental organisations to assist by ‘engaging in capacity building’, while using the opportunity, often from the best of motives, to impose on the post-conflict society their idea about what criminal justice should entail.

The provision of such assistance is never a simple process. The tension between the internal old system and externally driven reforms often provokes substantive debates about underlying principles, which are avoided in less disputed systems. The reform process is influenced not only by the ideas and ideals of the aidgivers, but also by the relative political strength of the parties involved and, crucially, by the existing criminal justice system that may have continued to operate throughout the conflict. The careful student of criminal justice should pay particular attention to this last factor, for in the process of reconstruction much is revealed also about the pre-existing system and the claims that it made, and may continue to make, about embodying universal values of justice.

Dr. Andy Aitchison is that careful student of criminal justice. Bosnia-Herzegovina is the exemplar of a sophisticated society in which a pre-existing criminal justice system with a clear set of values (which were already under partial threat with the demise of Yugoslav socialism) was confronted, after a major conflict, by a large and diverse international aid effort.

The reform, reconstruction and restructuring of the criminal justice field in Bosnia and Herzegovina (BiH) since 1995 has taken place in a specific local historical and political context. This chapter sketches out the most relevant contextual factors from the country's history, concentrating on the period from 1944, when it was reintegrated into a second Yugoslav state, its experience of the disintegration of that state, and the post-war political settlement and structures of government. The context of multiple and overlapping transitions developed in this chapter is key to understanding the ongoing development of criminal justice structures in a country with a highly complex framework of governance. Before locating BiH in the context of the second Yugoslav state, some pertinent features of its pre-1944 history are discussed, below.

A long history of Bosnia would include a period of fragile and emerging statehood in the late medieval period in which the pendulum swings between centrifugal and centripetal tendencies of the kind observed elsewhere by Elias (1994: particularly 195 ff, for the manifestation of this in BiH, see Malcolm 1996: 13–27; Ibrahimagić 1998: 71–76). For parts of this period Bosnia was a multiconfessional society, and Catholic, Eastern Orthodox and domestic variants of Christianity were found at Court (Malcolm 1996: 17, 23, Fine 2002: 4), but the combination of the absence of a unifying Church and a mountainous landscape contributed to localism, instability, and vulnerability to external intervention (Fine 1987: 454). Pressed by competing interests, particularly the Hungarian Kingdom to the north and the expanding Ottoman Empire to the south, Bosnia and Herzegovina were fully incorporated into the latter upon the fall of Jajce in 1528, but continued to exist as a territorial unit until 1929 when, as part of the Kingdom of Yugoslavia, it was divided across four Banovine. These divisions were revised in 1939, and during the course of the Second World War (1941– 1944) BiH was divided again, this time between zones of Italian and German interest within the German sponsored Independent State of Croatia (NDH). Only in the founding stages of Yugoslavia's second historic manifestation did Bosnia and Herzegovina regain territorial recognition as one of the country's six constituent republics (see map 2.1).

The problems facing the police forces of Bosnia and Herzegovina (BiH), outlined in chapter 3, presented a considerable challenge to the development of a stable and democratic state in which all citizens enjoyed equal access to security and justice. This chapter examines three particular attempts to address these problems. A large number of organisations have been active in police reform in BiH: thirteen of the twenty agencies included in an Office of the High Representative (OHR) matrix of criminal justice reform initiatives were active in police reform in 2004 (see in appendix 2). The work of each agency is not always easy to isolate as numerous organisations work together on shared projects or inherit mandates from one another. This chapter first examines major multilateral civilian police missions, under the auspices of the UN and EU been active in BiH since the earliest days of the peace. Following this, work commissioned by the UK Department for International Development (DFID) will be examined as an example of small scale, bilateral assistance, guided by a developmental agenda. Finally, the chapter will turn to the Police Restructuring Commission (PRC), a body that combines local and international representatives, and whose work has been supported by OHR and the European Commission. In no way does this exhaust the range of interventions in post-war policing in BiH; for example the European military mission, EUFOR, supports local law enforcement agencies in tackling illegal logging, locating illegal weaponry, and addressing organised crime. By examining these three particular cases of intervention, the chapter aims to provide a certain contrast of contexts, placing major multilateral projects alongside smaller bilateral schemes, and by placing projects developed in a framework of development and peace building alongside those linked into other policy goals, particularly European integration. A closing discussion draws on these to explore developments in BiH in terms of democratisation, state-building, and the nature of the intervening organisations.

CORE CIVILIAN MISSIONS AND THE POLICE IN BOSNIA AND HERZEGOVINA

The General Framework Agreement for Peace (GFAP), introduced in chapter 2, provides for an International Police Force under the auspices of the United Nations.