Restoring faith in Bosnian law

A court usher calls for silence, all rise in a respectful hush, and the judges file in gravely, their black robes trimmed with blue, to take their seats at the bench and hear another case.

A typical morning in court, it seems, such as judges anywhere might spend. But in Bosnia-Herzegovina, appearances can be deceptive.

For a start, most of the 14 judges at the Human Rights Chamber - Bosnians' last recourse against their government - are foreign. That is to ensure that conflicts among the six Bosnian judges - two each representing the Serb, Croat, and Muslim communities - do not paralyze the court.

Second, although there is no appeal against the chamber's rulings, that does not mean the authorities will necessarily heed them if found to be in the wrong. A little more than four years after the December 1995 Dayton peace accord brought an end to Bosnia's bitter ethnic conflict, the fledgling Balkan state's various governments have ignored more judgments than they have obeyed.

Making a normal, law-based state out of a country emerging from nearly 50 years of communism and three years of ethnic warfare as the former Yugoslavia broke apart is proving a more difficult task than anyone had imagined. But step by hesitant step, officials say, progress is being made.

"As an impartial body we are setting an example of the first inklings of what a state of law could be," says Michle Picard, the French magistrate who is president of the Human Rights Chamber. "We are there to show that the authorities cannot do whatever they like, that there is some control over them," she says.

But the chamber's impartiality, Ms. Picard acknowledges, is guaranteed by its foreign members: Only one of the local judges has ever found against the government that named him to the panel.

In ethnically divided Bosnia, which is split into two autonomous entities - the Serb-dominated "Republika Srpska" and a Muslim-Croat Federation - and ruled by nationalist parties, impartial judges are few and far between.

This is not surprising, given that judges are appointed by parliaments dominated by hard-line nationalists, who have no interest in setting up an independent judiciary that might cramp their style, and who keep a close eye on how "their" judges behave.

That means people dismissed from their jobs because of their ethnic background have no chance of being reinstated through the courts. It means that a Croat judge accepted without question psychological evidence of "postwar trauma" to acquit a Croat policeman accused of killing a Muslim. And it means a Muslim judge suddenly decided to go on vacation rather than supervise a lineup to identify Muslim gunmen accused of attacking peacekeeping troops.

"I wouldn't want to be a judge in this country," says Stephanie McPhail, deputy head of a United Nations project to monitor Bosnia's judicial system. "It's a difficult job, you don't get paid well, and if you have a sensitive case you are leant on by the politicians."

"Getting rid of party influence over the nomination of judges is probably the most important thing any of us can do," says Matthew Hodes, a former Florida prosecutor in charge of judicial reform at the Office of the High Representative (OHR), the international agency that oversees implementation of the Dayton accord.

Persuading Bosnian politicians of that, however, is another matter.

"The national judiciary has no credibility and there is no political will to give it any," says Picard bluntly.

Parliament last year rejected a law drafted by the OHR that would install panels of senior judges to make all judicial appointments - taking them out of politicians' hands - but Mr. Hodes is still hopeful an amended version of the measure will pass this year.

"Everything else is peripheral if you don't have truly independent judges as the cornerstone of your system," he points out.

Even when an unusually independent-minded judge does rule against authorities, it is hard to get that judgment implemented. Bosnia-Herzegovina has nothing yet like the US Marshals' Service to enforce court rulings, and ordinary police are still blinkered by ethnic considerations.

The most contentious and common court rulings, as refugees try to return home, concern evictions. For example, a Serb refugee returning to a majority Croat area might appeal to the courts to evict the Croat family now living in his home. But even if the court rules in his favor, the (Croat) police charged with carrying out the eviction are often unwilling to do so.

Nor is respect for the rule of law much encouraged when senior officials scorn it. Foreign human rights workers are fuming over a recent public pledge by Alija Izetbegovic - the Muslim member of Bosnia's three-person presidency - that no Muslim refugees would be evicted from the homes they had taken over, regardless of court decisions.

Judges and prosecutors also complain that they are hamstrung by a lack of money - kept on a deliberately short financial leash by the politicians who vote for their budgets. Some courts are so short of cash they have had their telephones cut off for nonpayment; others cannot afford to pay heating bills, so they simply close down for the winter.

Against this sort of background, progress is measured in small units. But it can be measured, judicial experts say.

In hard-line Croat areas, courts are no longer decorated with posters glorifying the late Croatian president Franjo Tudjman. One state prosecutor has been found who is ready to prosecute a housing authority that refuses to give refugees back their homes. Judges have begun to hand down eviction orders against illegal occupants. And Picard has noticed that in the last couple of months, authorities have begun complying more readily with her court's rulings.

"Things have been moving very, very slowly," says the UN's Ms. McPhail. "But a few rays of light have begun to shine at the end of the tunnel."

(c) Copyright 2000. The Christian Science Publishing Society