chapter  7
12 Pages

From ownership to imposition: the process of creating a legally accountable Bosnian judiciary

ByPER BERGLING

This chapter is devoted to one important aspect of international anticorruption efforts in post-crisis environments: the promotion of judicial integrity. The reason why peacebuilders are concerned with this issue is that without an independent and impartial judiciary, citizens cannot benefit from the protection and opportunities the law provides. Also of fundamental importance is the fact that without judicial integrity there can be no effective supervision and sanctioning of corrupt practices in other branches of the state. This chapter explores the conflicting imperatives of peacebuilding and institution-building.1 On the one hand, the international community consistently stressed in internal and external fora the importance of local ownership and leadership, but it also had to contend with the fact that corrupt and criminal elements were the most likely to adopt leadership positions in Bosnian government and business. Indeed, approaches based on local ownership and trust failed repeatedly, solidifying popular distrust and cynicism. Eventually, the international community felt it had no option but to move in the opposite direction, towards internationalisation and imposition, with a view to creating conditions for national ownership in the future. The other argument that this chapter puts forth is that the contextual framing of a problem can serve to obscure or to highlight corruption. In the case of BiH, the salient frames, through which all problems of state and society were viewed, had been based on ethnicity and nationalism. But after 1999 an important shift occurred, and there was a greater focus on the rule of law and reforming the judiciary; problems that were previously considered ‘ethnic’ were treated like common corruption. After this paradigm shift occurred, all of the international community’s policy tools and policy perspectives dramatically changed too, and they did so in an abrupt manner. The problems in the BiH judiciary illustrate the importance of framing effects, especially in revealing how corruption can sometimes be obscured (or overemphasised) depending on the frames that an actor chooses to adopt. In exploring the shift from the ethnic frame to the corruption frame, this chapter illustrates that the steps that were eventually

taken to address judicial problems were rarely analytical or strategic in nature, but were instead reactive, and thus characterised by a process of trial and error. After the entire Bosnian judiciary was fired, the process of converting the international mechanism for judicial appointments and judicial discipline into a locally owned structure was completed quickly and at the time, it also appeared to be successful. The oversight body and the judiciary enjoyed an unprecedented degree of popular confidence in the period directly after this process occurred. However, this feeling of trust and confidence has since dissipated. Amongst the general population of BiH there now seems to exist a growing lack of trust in the judiciary (UNDP 2010a: 34). Further, the political class’s confidence in the judiciary has waned, as evidenced by the number of legal challenges mounted by a number of political actors in BiH. This, in turn, further undermines confidence in the independence of the judiciary (OSCE 2010).