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Dayton's Broken Justice

The Huffington Post The Huffington Post 18/11/2015 Kyle Delbyck

Do you support the "anti-constitutional and unauthorized laws imposed by the High Representative of the international community, especially the laws imposed relating to the Court and the Prosecutor's office of Bosnia and Herzegovina?" This is the provocative, not-so-mildly leading question that voters in Republika Srpska (RS) -- Bosnia's Serb entity -- will answer in a threatened referendum on the country's State Court, which prosecutes crimes committed during the Yugoslav War. While it is unclear how RS authorities will use the results of the referendum, key actors, including EU Delegation Head Lars Gunnar Wigemark, have expressed concern that the proposed vote endangers the "sovereignty and security of the country as a whole."

Such is Dayton two decades in. Weighed down by the terms of the peace agreement, judicial institutions and, in particular, domestic war crimes trials, are uniquely vulnerable to political pressures.

Dayton redrew boundaries along ethnic lines, controversially rewarding Bosnian Serbs for their destructive campaign in the name of a Greater Serbia. The country was divided into two entities: the Federation of Bosnia and Herzegovina (FBiH), which comprises 51 percent of the country's territory and is predominantly Bosniak Muslim and Croat, and RS, which comprises 49 percent of the land and is predominantly Serb. Facing near-intractable leaders and roiling ethnic tensions, US mediators not only made territorial concessions, but also resorted to thorny structural compromises. In order to keep Bosnia whole, the agreement grants the entities extensive powers in relation to the central state, with the result that two mini-nations have emerged within a supposedly united Bosnia. This dynamic has subverted the processing of war crimes: the upcoming referendum being just one of many examples.

Dayton allocates primary responsibility for judicial matters to the entities; the only state level judicial institution explicitly provided for in the post-war Constitution -- Annex 4 of Dayton -- is the Constitutional Court, which has limited jurisdiction. There is no Supreme Court of final instance. Accordingly, in the immediate aftermath of the conflict, the entities controlled domestic war crimes prosecutions. With both RS and FBiH still entrenched in their respective, opposing accounts of what transpired during the war, these trials operated as bastions of ethnic bias, failing to satisfy aggrieved communities throughout Bosnia.

The dysfunction of entity prosecutions came to a head when the Hague tribunal (ICTY), which had been trying high-level perpetrators, decided to close up shop. Looking to Bosnia to take up the baton, the ICTY concluded that wholesale judicial overhaul was unavoidable. This undertaking was helmed by OHR (the Office of the High Representative), an international body charged with overseeing the implementation of Dayton.

Confronted with Dayton's constraints, the Office adopted a creative -- to say the least -- interpretation of the Constitution. Inferring the power to create a state level war crimes court from vague provisions on human rights, inter-entity law enforcement, and state sovereignty, OHR established the WCC (Bosnian War Crimes Chamber). Though entity forces -- primarily in RS -- condemned the Chamber as unconstitutional, resisting centralization of war crimes prosecutions, OHR eventually overcame this opposition. In a notable concession, however, the WCC was not given appellate jurisdiction over the entity courts.

While the Chamber has made great strides, conducting fair trials where previously there existed only political infighting, Dayton's limitations have continuously hampered its progress: one step forward, two steps back. Because the WCC has no authority over the entity courts and there is likewise no Supreme Court to harmonize the law of the land, the WCC and the entity courts have applied different war crimes codes since the Chamber's inception: the State Court, a modernized code with a maximum penalty of 45 years, and at the entity level, the old Yugoslav code, which does not reflect international standards and has a 20-year sentencing ceiling.

The use of conflicting laws has spawned uncertainty and sentencing disparities, with the state tribunal consistently imposing harsher punishments for war crimes. These discrepancies have fueled attacks on the Chamber, with prominent RS politicians pointing to the court's sentencing practices as evidence of its bias against Bosnian Serbs. As Dayton contains no mechanism to even out jurisprudence, the WCC is exceedingly exposed to these accusations. Meanwhile, the chaos engendered by the fragmentation of war crimes prosecutions has chipped away at the public's faith in the Court.

The Chamber's shaky constitutional foundation makes it additionally susceptible to the Serb entity's relentless assault. To fend off RS advances, international forces have repeatedly intervened on the WCC's behalf, only further marring the tribunal's domestic credibility and bolstering the conception that the court serves foreign agendas, not homegrown justice. These RS sorties flare up like clockwork.

In 2009, for example, Bosnian Serb delegates in Parliament blocked attempts to extend the mandate of international judges and prosecutors working in the Chamber; the OHR eventually used its powers to override the RS contingent. In 2011, the RS Parliament voted to hold an entity-wide referendum on the court and Prosecutor's Office, threatening to pull out of state judicial institutions altogether. With the delicate balance in Bosnia and Herzegovina at risk, the EU stepped into fray. In exchange for a "structured dialogue" on judicial reform, RS President Milorad Dodik called off the vote.

In 2013, when the European Court (ECtHR) ruled that the WCC had erroneously applied the new code in certain cases, RS politicians toasted to their supposed vindication. While the logical next step would be the creation of a Supreme Court, RS leaders propelled themselves in the opposite direction, calling for the abolishment of the Chamber altogether.

Leverage from the ECtHR judgment has resulted in this latest referendum. The current iteration appears more ominous than its predecessors: RS has resisted the international community's efforts at mediation and has even pledged to hold a vote on secession in 2018. While the WCC has managed to weather the tempest thus far, its legitimacy is waning and there is no guarantee it will survive the next campaign.

To ensure that the court is not swept away by political climes and, correspondingly, that war crimes processing in Bosnia and Herzegovina continues to function, the Constitution must be amended to endow the Chamber with constitutional status, enabling the tribunal to stand on its own. Less urgent but still important, amendments should be introduced to establish a Supreme Court -- disputes over different war crimes laws continue to destabilize the Chamber, sabotaging its efforts to achieve justice for the myriad victims of the conflict. Though Dayton ended the violence in the 1990s, it has facilitated and nurtured a new kind of political warfare; Bosnia and Herzegovina's long-term sustainability depends on its capacity to transcend the vicious ethnocracy of the past 20 years.

This post is part of a series produced by The Huffington Post to commemorate the 20th anniversary of the Dayton Peace Accords. The agreement that ended the war in Bosnia and Herzegovina -- after over 100,000 people were killed and over two million people were displaced -- was reached on November 21, 1995.

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