80 Club Lecture -
“”The Rule of Law in a
Post-War Society: the Latest
Developments from
by
The Rt Hon Lord Ashdown of
Norton-sub-Hampton KBE PC
[Explains the Office of the High
Representative and the virtue of an “ad hoc” structure.]
The OHR was created to
address the needs of one country, but it may nonetheless offer lessons for
other post-conflict and transition states.
The International Community’s peace-implementation
strategy in
But there are elements
in that strategy that could productively be applied elsewhere.
Let me start by
describing my job.
The OHR was
established at
The reason for
establishing the OHR – an entirely new institution – was largely because the
well-intentioned but inept and ineffective UN intervention in
This has led to
reporting lines which are – often rather advantageously – somewhat confused.
The primary – but
still undefined – reporting line for the Office of the High Representative,
which numbers some 750 staff and has a budget of a little over 20 million Euros
is to the Peace Implementation Council, itself an ad hoc structure made up of a
“coalition of the willing” major funding contributors to the OHR budget.
I also report twice
year, to the UN Security council through the UN Secretary General, but am not
formally accountable to them.
The OHR was created
outside the UN family as a matter of political expediency, but this arrangement
has over time displayed certain advantages
These two features
have enabled successive High Representatives to respond quickly and decisively
to a broad range of situations that have arisen in the course of peace
implementation.
Supervising
implementation of the Dayton Agreement has since the very beginning, involved
coordinating the humanitarian and reconstruction efforts of a host of
international agencies operating in BiH.
At the start of OHR’s mandate, the technical and administrative
machinery with which to do this job was effectively absent. My predecessor, Carl BLit, famously arrived
in
Because OHR began life
under-resourced and under-staff, the huge influx of aid in the immediate
post-war period was inadequately coordinated and the space where the rule of
law should have been was left unoccupied.
The forces of crime an
corruption which always follow war swiftly moved in and now infect the marrow
and the blood stream of the state in every one of it its organs.
And we are still
grappling with the consequences today.
In addition to the
physical limitations of a small, ad hoc office staffed by an endlessly changing
roster of diplomats and secondees, many of them posted to BiH for six months to
a year, the peace-implementation strategy during the first five years was
strongly oriented towards kick-starting the democratic process. An emphasis on forging political compromised
among the
This has led to
bureaucratic sclerosis, widespread cynicism among the general public, lost
opportunities and wasted international resources on a massive scale.
Inadequate resources
for coordinating a sudden influx of international aid, and a preoccupation with
assembling the institutional and operating framework for democracy diminished
the International Community’s ability to resolve fundamental problems. Effectively, these policies made it harder
not easier to establish the Rule of law in
More recently,
however, significant progress has been made in beefing up the OHR’s capacity to
coordinate the work of international agencies.
Our relationship with other agencies has not always been easy,
especially since each agency has different reporting lines, but in the last
year we have been able to improve coordination and as a result raise the
quality of the work of the International Community in BiH. I now chair a weekly meeting of the
principals of the main organisations – SFOR, UNHCR, OSCE, the EC, the World
Bank, and the IMF. This “Board of
Principals” acts as a kind of cabinet.
It has dramatically improved the coherence of the International
Community’s strategy and the cohesiveness of its operations. Its inauguration coincided with a major
streamlining effort aimed at identifying core tasks that must be achieved
before the international agencies can withdraw from BiH, and attaching
timelines to each of these tasks. The
OHR, the Board of Principals, and the international organisations in their own
right are not pursuing an exit strategy, but rather an entry strategy for BiH
into broader European structures, with EU membership as the ultimate goal.
The Powers of the High
Representative.
In December 1997 the
Peace Implementation Council, the association of 55 countries and organisations
that support the peace process, expanded the High Representative’s powers
significantly, granting authority to impose legislation and dismiss elected
officials.
Again, this was a
decision made for political reasons – recalcitrant officials were sabotaging
the provisions of the Dayton Agreement through blatant procedural
foot-dragging, and the various parliamentary assemblies were hopelessly
gridlocked and had proved incapable of passing the legislation necessary to
cement democracy and re-start the economy.
And again, a decision
taken for immediate political reasons has had a significant long-term impact on
efforts to establish the Rule of Law.
A very high number of
Decisions by the High Representative have been used to enact core reforms. These Decisions are made on a provisional
basis until the domestic authorities are in a position to adopt identical
legislation by themselves.
This kind of
intervention under powers given to an international official by the
International Community has raised questions about the justiciability of the
High Representative’s Decisions before the BiH courts. In what is now well-established
jurisprudence, the
I have sought to be as
sparing as possible in my use of the power to dismiss elected officials. This had come to be seen as an immediate and
effective sanction in the absence of efficient courts and against the backdrop
of an inadequate system of parliamentary or popular political
accountability. Yet each dismissal by
the High Representative, it could be argued, diminishes the impetus to set in
place the kinds of structures of accountability whose absence makes these
dismissals necessary. By solving the
problem by fiat, we remove the incentive for BiH to set in place it own
mechanisms for solving the problems.
Because of this, I have striven to avoid the easy fix – I have resisted
the temptation to engage in wholesale dismissals.
I have also tried to
follow a broad policy framework for the use of my powers.
Stripped to its bare
essentials, my job is to stop the powerful abusing their power. In a normal state this is done by two
things. The checks and balances of
independent institutions: and the power
of public opinion.
My actions, therefore,
should be primarily aimed t encouraging the growth of the civil society and
creating the institutions of a modern European state; an independent judiciary,
police force and communications regulator; a clean political system; the rule
based structures which govern a modern free market economy etc.
It is thus, as I view
it, more legitimate for me to use my powers to create these institutions of a
modern state than it is to interfere in the decisions my Bosnian colleagues
take within those institutions.
From peace
implementation to transition.
The first two years of
peace implementation were devoted to organising refugee return, reconstruction,
property repossession and democratic elections.
The second phase began in 1998 with a broadening of the International
Community’s agenda. Media reform, the
creation of multi-ethnic administrations, negotiating constitutional reform, an
anti-corruption campaign (albeit, unfortunately, a rather timid one) and an
attempt to weaken the grip of destructive nationalism were part of this second
wave of reforms.
It quickly became
apparent that the sustainability of these reforms would require in-depth
transformation of the legal framework.
This was especially the case because the legal profession was suffused
with principles and operating methods left over from the old communist
regimes. The out-dated laws put in place
before the war made economic recovery all but impossible. At the same time, the shortcoming s of the
judicial system, rather than being a target of reform, were being used by the
wartime elite to maintain their hold on power.
When I arrived in BiH
in May last year to take up my duties, I laid out a comprehensive reform agenda
around the slogan “First Justice, then Jobs, through Reform”. This programme encompassed an ambitious
series of Rule of Law targets. It also
envisaged implementation of an economic reform agenda that had until then been
pushed off track by conflicting domestic
party-political interests and the lack of coordination which I referred
to earlier among international agencies.
It was clear to me
that without substantial progress on the Justice and Jobs agenda, the
sustainability of
I am convinced that
this combination of legal and economic reform should have been applied at the
very beginning of the peace process – not seven years on. But of course it is easy to be certain with
hindsight. We did not know then what we
know now. yet, this may be one of the
crucial lessons that can be taken from
I have repeatedly been
asked to compare peace implementation in the Balkans and in
A year ago when we
stepped up the campaign to establish the Rule of Law we did to in a fundamental
way. We launched a comprehensive review
and restructuring of the judiciary. The
project was based on establishing the principle of accountability of public
officials and transparency of public administration. It was designed to reform a judicial system
that was inert and inefficient.
The BiH judiciary had
not merely been ravaged by war;; it bore all the flaws of its origin in a
culture where there was no separation of powers and no tradition of judicial
independence.
Under the former
system, judges and prosecutors were servants of the executive power.
This flaw in the
judiciary has had a knock-on effect:
when judges are not – and are not perceived to be – independent and
honest, the Rule of Law cannot take root in the popular culture.
So our object has been
to establish an independent judiciary capable of dispensing justice effectively
and efficiently. This is a prerequisite
for economic as well as political and social recovery.
Businesses are
reluctant to invest in
The process of refugee
return has been slowed because refugees and displaced persons have not been
able to turn to the courts and regain legal title to their property and their
jobs. Or access to social services to
which they have a legal right but only on paper. The shortcomings of the judiciary have meant
that alleged war criminals cannot be tried in
Corruption had become
endemic.
The judicial system
will only gain the confidence of citizens and investors and begin to underpin
the democratization process in a fundamental and effective way if it is
thoroughly reformed, upgraded and strengthened.
And that is what we
have set out to do.
The programme we put
in place to reform the judiciary combines an institution-building component
with a near-term strategy to fight crime.
·
A High
Judicial Council, independent from the legislative and the executive powers,
has been established made up, for a transitional period, of international and
national members. The HJPC has the
authority to appoint and discipline judges and prosecutors; the first
disciplinary cases have now been heard under this system. This measure brings to an end half a century
of interference by political authorities in the judicial matters.
·
New modern
criminal/civil procedure codes and a law on enforcement procedure have been
prepared by a group of international and national lawyers and have been
enacted;
·
Courts and
prosecutors’ offices are being restructured in order to increase efficiency,
and the internal court administration is currently being reformed;
·
A Law on
training institutes has been enacted, and the IC will use these training
institutes as the vehicle for disseminating the new codes of procedure among
judges, prosecutors and solicitors;
·
Special
chambers in the criminal division of the State Court and special departments in
the prosecutors’ offices have been established for economic crime and
corruption cases. These departments are
staffed by a partnership of international and national judges and prosecutors.
·
Finally, a
unit within my office was set up to assist prosecutors in putting together
important cases against economic crime and corruption. This unit acts on an ad hoc basis and on the
basis of information gathered from different sources.
The judicial system’s
ability to administer justice fairly and effectively is essential to preventing
abuse of public office, to enforcing the rights of citizens, and to maintaining
social order. In sum: a strong judicial system in
Legal reform goes hand
in hand with immediate policing and judicial initiatives aimed at facing the
problem of criminality head on.
After six years of
intensive work by the UN Mission to restructure the police, the first large-scale
EU Mission has taken over this crucial task and I am “double hatted” as an EU
Special Representative to oversee the process.
The EUPM’s police
officers, from EU and non-EU countries, working together at duty stations all
over
The new Court of BiH
is now prosecuting its first case – the biggest human trafficking and
prostitution case ever to come to trial in
We still need to rid
BiH of war criminals. To this end we
have recently widened the battle against those who support and fund war
criminals, freezing their assets, sequestrating their bank accounts and
preventing them from travelling to
We have also
drastically reduced the legal immunity enjoyed by p9oliticians, and we have put
in place comprehensive legislation on conflict of interest. We are now building up the capacity of the
Election Commission to enforce this legislation.
We are also engaged in
a program aimed at strengthening the audit institutions of BiH. Last year, I appointed a team of Special
Auditors and gave them a mandate to look at the management and financial
records of the major State-owned companies, starting in the public utilities
sector. The audit has unearthed a
culture of corruption and calculated mismanagement among most sectors of the
public utilities infrastructure. Those
who should have been serving the citizen were instead robbing them. In the wake of these reports, structural
measures were taken to address the most egregious cases of corruption, whilst a
broader programme of corporate governance restructuring is being launched under
the aegis of the World Bank.
The murder of Zoran
Djindjic in
We are working flat
out to break these links.
Conclusion
It is a society in
which bureaucratic corruption has a long history, but it is not a society of
corrupt citizens.
It is a society in
which criminal gangs and war profiteers have wormed their way into positions of
influence, but the people of BiH are neither criminal nor violent. We are not swimming against the tide in our
efforts to establish the Rule of Law in
The first is that a
stable, prosperous, democratic and law-abiding
The second is that the
front line against crime in
And lastly, the people
of
Helping them to build
a state, establish the Rule of Law, create the conditions for economic success
and make their way on the long party to