Council of Europe Conseil de l'Europe * ★ * ★ ★ ★ ★ ★ ★ * ★ * COE273057 Strasbourg, 12 June 1996 Restricted
EUROPEAN COMMISSION FOR DEMOCRACY THROUGH LAW
INFORMATION ON THE SITUATION OF THE JUDICIARY IN THE FEDERATION OF BOSNIA AND HERZEGOVINA
(Articles on the Constitutional Court of the Federation of Bosnia and Herzegovina from the American Bar Association Journal)
This document will not be distributed at the meeting. Please bring this copy. Ce document ne sera plus distribué en réunion. Prière de vous munir de cet exemplaire. 2-
>/23/96 FRI 17:51 FAX ABA CEELI
COVER STORY / INTERNATIONAL LAW Prelude to Justice Sarajevo. It is a city of contradictions. It was the scene of the assassination of Archduke Ferdi nand. which history credits as being a catalyst for World War I. It also was the scene for the 1984 Winter Olympics, where skaters Katarina Witt and Scott Hamilton thrilled audiences worldwide. With training from U.S. lawyers, Lately, it has been the scene where the rule oflaw is nowhere to be found. justices on a new Constitutional The rule oflaw. It is a phrase we Americans accept as a given because we are accustomed to settling our disputes under it. It is a concept that Court will try to establish the rule cannot be fully appreciated until one sees its absence. of law in war-torn Bosnia. Such is the case in Bosnia-Herzegovina. Lawyers there, having spent their lives under communism, are rapidly having to learn our sys BY GARY A. HENGSTLER tem of justice, ail while trying to help the nation extricate itself from a war not of its choosing. v American traditions, it was a smail symbolic To explain the war is beyond the scope of this gesture—one daily taken for granted in U.S. article. For most Americans, it is a confusing scries courts. But this gesture, coming at the conclu Bsion of a full, hard day's work by the just ices ol the new of news reports involving Serbs, Croats and Muslims—and places with few, if any. vowels. Constitutional Court of the Federation of Bosnia- The conflict involves three distinctly different Herzegovina, captured the essence of the fundamental peoples thrown together by history. Croatians shift of values in this war-torn nation in a way, per generally are Roman haps, that few other things could. Catholics, Serbs mostly The scene was a conference room in the Eastern Orthodox. These office of the presidency in the center of Sara two peoples have been in jevo where the justices had spent the day conili« for centuries in the struggle between Rome and Constantinople. In the 14th century, the Ottoman Empire introduced Islam to the region. Only in Bosnia- Herzegovina did it take hold significantly to establish a majority status. Bosnia-Herzegovina is the least nationalistic state in the former Yugoslavia. Before war broke out in 1992, the estimated Bosnian population was 44 percent Muslim. 31 percent Serb, 17 percent Croat and 8 percent other. Most Bosnians blame outsiders— Croatia and Serbia —for forcing ethnic, national istic divisions that, until the early 1990s, the Bosnian people had chosen to overlook. This is also a stopr of how the American Bar Association, through its Central and East European Law Initiative, has facilitated this shift to democracy. In Januarv, ABA Journal Editor and Publisher Gary A. Hengstler traveled to Sarajevo VNÍÜ! ABA Execulivr Director Ilobert Stein, CEELI board chair Homer E. Moyer Jr. of Washington. D.C., and Mark Ellis, executive director of the CEELI program, for this report. As Stein later observed, it was a “powerfully emotional experience.”
52 A3A JOURNAL / MARCH 1996 Í ïftjir'f'sj&fc*
r,nal *«* "fl“>» **r m*U pro. ceed äs the highest national court. Thev had just elect- Banian 1’ lose,reuPeJCV’ He further “Pained that the ed Ошег Ibrahi magie, a Muslim justice who previously Bosnian people had become accustomed to viewing had served on the former Yugoslavian Constituai iefofUthper th1 °ld communist astern, where the jus® Г oí Ssr:S,dbnt,0fí° CÜUrl- and Mirk0 Bos“pices of the peoples court simply wore business suits to --me Coanoftn- had Prev™uslv served on the Su- demonstrate that the judges were also of the people At that point, Justice Bola A. Ajibola of Nigeria >res.dent ma er2eg0Vma aS th ° court’s deP- one of the three international justices named to the vR»re,‘ 4 M.°v.er Jr chair of the hoard of -he ™ave f"5 UMedly tried-rl° dlilfuSe the situation. “I ABAs C entral and East European Law Initiative ther 10 Tbe Ha ^e lo Zagreb [Cro.t- * imi fica n t1 г о 1 e° i r 1 ' 'B e Ca,U *e CEFLI fcad sut'h a Ihi pví ? c' ‘,m-cla f military ÍL’.y.' transport for c SÌ f ^nng ine past seven months in the îv ' ,,n Sarajevo- 11 you do not I«,: n:e wear mv » ы fi h ,COUrl‘,Moyer Prcsén:e
The devastation of war: Bosnian Army troops navigate a rood last fall during an offensive in Ozren in Central Bosnia.
' •rr ”^SA-'IÖURNAL-/MÂjfCFi'T9r9î’5'3 02/23/96
the constitutional makeup of the Unlike in the United States, court. as “swing members.” They also are where our Supreme Court decides to serve as “a mechanism to encour This is a unique court. No both the case before it and anv con age moderation and conciliation.” other national high court has mem stitutional questions, most Euro bers from other nations casting It is also hoped that the inter pean systems separate those two votes on decisions The concept was national judges will provide the functions between two courts—thc- new court with an authority that a born in the 1994 talks in Wash Constitutional Court and the Su purely Bosnian court might not es ington, D.C., to end the fighting be preme Court. tween Bosnia’s Croatian and Mus tablish immediately. Galbraith, as ‘‘Inevitably in a constitution,’1 one of the architects of this unusu lim factions and establish a federa Galbraith continued, “there are tion of these two peoples. al structure, places high hopes on it going to be disputes about meaning as one of the first institutions es The constitution protides that and application, so you need a the Constitutional Court will be tablished under the constitution. mechanism to decide it. The trouble The court, he maintains, “is of crit composed of nine members—six with any mechanism [in the federa- from Bosnia and three ical importance to the success of the from other nations. Of the six Bosnian jus tices, two are Muslim, two Croat am] two ‘‘others,” which, in this case, means two Ser bian justices. These justices were appoint ed by Federation Pres ident Kresimir Zubak, á Croat, with the con currence of Vice Pres ident Ejub Ganic, a Muslim, and the con firmation by the ma jority of the delegates of the House of Peo ples of the federal par liament. The three inter national justices were nominated by the pres ident of the Interna tional Court of Justice after consultation with mW,*'0" Preî;dent krejimir Zubok speaks of the preîentaHooofthe^ej 0f rf,e Constitutional Court ^ubak and Ganic. The MirÏo B^bric0orj'lhrU„Sh £ei "9h »l Mîlan Bajîc, Muamer Herceglija, Abdullah Filtri El-Khani, international justices wear the black mb«.« rf, > ,(nagic, BolaAjibola, Katarina Mandie, Francois Rigaux and Drasko Vuleto will serve for five wear the blackrobes that were presented la them by the ABA's Central and East European low years, after which they ln.hat.ve, symbolizing the.r ties to Western democratic principles. could be replaced by Bosnian justices. The five-year peri- tion] that would be considered nor od is to help establish the court’s le federation.” mal within a normal constitutional The presence of the interna gitimacy and to aid in developing system is that one side or the other procedural functioning. tional justices, in part, amounts to would view a decision as suspect. jump-starting the new system. For that reason, neither would hen I was in Zagreb, I Galbraith, alluding to the interna accept a court dominated by one tional justices’ role-model duties spoke briefly with Peter group or the other. You couldn’t Galbraith, the U S. am during their five-year tenure, said have a court created by the parlia ihe Bosnian people “are entering an Wbassador to Croatia, who wasment a key because the Bosniacs would environment where you had a com player in the development of the have a majority. If they had a ma new constitution and the establish munist legal system, which, in jority in the parliament and the many cases, meant no justice at ment of the federation. He ex courts, the Croats would feel that plained the rationale for the unusu all —certainly no confidence of jus they could be run over roughshod. tice. Now you develop a more West al structure of the court. “And a balanced court—equal ‘What needed to be done was' members from the two communities ern-style legal system and after to have a solution to a particular —risked being deadlocked alone that, a truly independent judiciary. problem,” he said. út lí n 1 л linúú w A. .... ______. ® “After that judiciary has been ethnic lines, oo we came up with a functioning for a while and demon “We were writing a framework device of Croat, Bosniac-Muslim for a constitution that involved and tin ее international members “ strating its independence, the peo ple are uiuie likely to lmve moie power sharing between two of the The ambassador said the inclu confidence in judges in their own peoples ofBosnia, that is, the Bosni- sion of international justices was country. So in that sense, too, the aks or Muslims and the Croats.” not just for resolving a given issue court is important to the future of
S*A «ES5/CAVJÌ SAGCj It was a strange and eerily ex the country," Galbraith said. thing.” He appreciated hearing from “experts from the l.nited citing trip into Sarajevo. After States at the top,” he said. “Right clearing all the U.N. paperwork hat ’s the theory as ham and receiving our U.N. badges des mered out in the 1994 now. in our constitution, we have many institutions that were taken ignating us as on a humanitarian agreement. But getting a ju mission, we waited m a tent-like Tdicial system written into the fromcon the law system in the United stitution and beginning to imple States. So it was very useful to hear lidding room. It became clear that Justice ment it are two different things, how your experts are thinking about all these issues. And our Ajibola, a prince in the royal family especially with Bosnian Serbs con of Nigeria, would be the most effu tinuing their war in the nation. hosts were very exceptional; they took very good care of us.” sive on the trip. He had a story for That ’s where the ABA comes into almost every cir play. cumstance and de The CEELI project held lighted at poking a workshop in Washington. good-natured fun D.C., in June 1995 for the at his colleagues newly appointed justices to and his hosts alike. develop the regulations and Justice Rigaux, a the organizational and proce continuing legal dural details of the court. scholar, always was Various U.S. judges, scholars, writing in his tab legislators and other legal ex let. He has written perts were called in to assist. many papers. Gen But that in itself pre erally sitting sto sented special problems. The ically, Justice El- Bosnian justices could get out Khani observed his of the country at that time surroundings with only at extreme peri! tc their a quiet and digni lives. They had to exit fied sophistication. through the tunnei that had All of us felt a been dug under the Sarajevo airport to get to their trans trifle edgy as we headed up the portation and then drive at night without lights to avoid ramp of the trans sniper fire. The normally port plane and four-hour drive to Split, Croa took our seats on benches along the tia, took 30 hours. Getting back was equally sides with the bag hazardous. Justice Vuleta, for gage and cargo example, had to remain in Za strapped in the greb for 25 days upon his re middle. turn before arrangements Sitting next tc o U.N. official could be worlccd out to get him safely back into Sarajevo. wearing a helmet Each of the justices has In war, shells moke no distinction between friend or foe: Here, the and flak jacket in his or her own dramatic story Red Cross building in Sarajevo took direct hits. the darkened inte rior doesn’t exactly about the perils of that trip. At the same time, each readily The next step was to convene ease your mind when you feel the vouches for the value of the work the court in Sarajevo itself. Because plane descend into Sarajevo’s air shop in preparing them for their of the hostilities, the introduction of port, Neither does having the new duties. the court was impossible until the French soldiers quickly hustle you In Washington, the justices Dayton accords. In January, I flew behind barricades of sandbags, were joined by Justices Ajibola and to Zagreb where I joined ABA Exec barbed wire and machine guns. You El-Khani. Justice Rigaux's sched utive Director Robert Stein, CEELI look at what is left of the airport ule did not permit his attendance. Executive Director Mark Ellis and buildings and have second thoughts The Bosnian justices also visited the three international justices for about the wisdom of coming here. Florida State University in Talla our flight into Sarajevo. Still, we only had to speed past hassee —whose president is Talbot At a dinner the night before the shells of what were once thriv D’Alemberte, the former ABA pres our flight, the talk was a mixture of ing high-rise apartment buildings ident who co-founded CEELI—for comments on the war ’s impact and and businesses to realize that un more workshop sessions. hopes for a lasting peace. Several less law can be genuinely rooted In Sarajevo, Justice Vuleta re dignitaries, including the German, here among the people, the contin flected on the workshop. “Personal Belgian and Bosnian ambassadors ued hatred, desolation and death is the only alternative. No photo or ly, I think the workshop was very and the president of the Croatian useful because we are meeting in a Constitutional Court, were on hand televised news footage can prepare constitutional nature, which is very' to wish the court well. Ambassador you for the totality of the destruc new to us. We are finishing with Galbraith gave a brief perspective tion. You begin to see why such one system and starting with a new of the trip’s significance. high hopes and expectations have 02/23/96 FRI 18:00 FAI ABA CEELI
been placed on this new court. who dissents was always obligated attention that the court now had After checking into the Hotel to explain the dissent. Bosnia where the Bosnian justices only two offices total, Sacirbey It was clear that some of the agreed that it was a problem, but ánd the international justices met Bosnian justices either were not for the first time, we packed into a not one his office could address be comprehending the subtle distinc cause of jurisdictional lines. caravan of cars led by a police es tions Justice Ajibola was attempt cort with flashing lights to dinner. I However, when Justice El- ing to make or they disagreed with Khani told of the difficulty the in admit to feeling a bit uneasy as the adopting his view as the way they ternational justices had in getting prnrp-scinn fallowed the Miljacka wanted to proceed. In any event, permission to enter the country River. On the mountainsides about they ultimately resolved the fine a football field-length even temporarily and raised the away were trenches problem of whether they and the Serb gunners. would even be able to attend It did occur to court functions without me that if we wanted something more permanent. to signal a would-be Sacirbey immediately got on sniper that there were the phone and ordered Bos some heavyweights in nian passports prepared for the Bosnian govern them. ment close bv, we went The next day it was about it the right way. time for the court to official Fortunateiy. nothing ly begin. The introduction impaired the happi ceremony took place in the ness of the evening. large reception hall in the The dinner con Presidency Building. The versation only served room could be described as to confirm, in human ornate, yet the scars of the terms, what the struc war were also present. I tural devastation we counted five bullet holes not saw meant to the city, yet patched and some of the which had endured intricate detailing was gone the longest siege since from shell blasts. Leningrad in World As reporters and televi War lí. The shelling sion crews crowded together was an equal-oppor along the sides, the room tunity destroyer. I sat quickly filled to standing beside Justice Milan room-only with virtually Bajic, himself a Serb, every government leader whose 25-_vear-old son and the Sarajevo legal com was killed by a Serb munity on hand. As one on shell in front of his looker remarked to mv home. A Muslim, Jus translator, “This is the most tice Ibrahimagic ’s 9- important event for the na tion since Dayton.” year-old-son was also Once a proud monument to the long history of the peoples of When the robed jus killed in front of his Bosnio, the National Library in Sarajevo now lies in ruins. home. tices entered, an audible murmur came from the Before the court would be in legal points. troduced to the nation in a televised crowd along with a few gasps. As session in two days, a final CEELI Justice Vuleta had predicted, looks s the final details were of astonishment were evident as workshop ironing out the last de being worked out around 5 tails was scheduled the next day. people turned to look at each other Aí>p m that evening. Justice and whiepor thoir rcactiono. Almost Justice Mirko Boskovic, a Croat, Muamer Herceglija, Justice El- served as chair since the last order immediately, though, a hush de Khani, Moyer, Stein, Ellis and I vis scended. of business would be to select a ited the office of Muhamed Sacir- president of the court. It was a The president of the court, Jus bey, the minister of foreign affairs. tice Ibrahimagic, set the tone: “I painstaking, full-day process that Sacirbey ’, who has a law degree went past the time allotted. hope this court, whose members are from Tulane University in New Or justices with great respect in inter Much of the difficulty and de leans, was enthusiastic in offering lay was attributed to the language national law institutions and in our his support and championed the in country as well, by its actions will barrier. As a view or statement was dependence of the judiciary. translated, some confusion would contribute to replacing the strength A critical logistical problem is and power of weapons with the surface about interpretation. that of office space for the court. For instance, part of the draft strength of justice and equality in The Supreme Court Building along the territory of Bosnia and Herze rules were ambiguous. One raised the river was destroyed. In fact, the question of whether a noncon govina.” with so much of the city bombed Federation President Zubak curring opinion always equated to a out, space is at a premium every dissenting opinion and whether one said the court would “ensure the where. When it was brought to his founding of our young country on
*SAJ/GA#V hÏNGS'_ï; ... the criteria of modern countries John Menzies called the beginning tice by the Security Council and the and the needs of the two con of the court a “unique and exciting General Assembly in 1991 Decem stituent peoples. For that reason, event because Bosnia is creating a ber. I completed my term in Febru we will lend our full support and new nation, not repairing an old ary 1994. I was appointed by the help to the justices, respecting their one.” He said the most “important president of the International independence and impartiality. ” pillar of democracy is a strong and Court of Justice in consultation Judicial independence was independent legal system” and that with the president and vice presi stressed by Marioiil Ljubic, presi the work of the court will be “of de dent of the federation of Bosnia- dent of the Federation Constituent cisive importance to the people.” Herzegovina. So this has nothing to Assembly, who said the legislature On behalf of the U.S. government, do with Nigeria. ” “expects you to be fully in In slow, measured dependent of anyone, with tones, Justice El- out interference from any Kham of Syria shot institution.” back to the reporter: He called on the court “First of all, I will not to protect the constitution accept your allegation and the legal system, “to that we have come to protect justice from injus be known as a nonde tice. According to the consti- mocratic country. :ution, you have the last fc.4ynfl hac Ьоотл word and it is up to us to known for the longest ensure that the rule of law democratic constitu is respected on all levels of tion and policy. We the government, as well as have a parliament the enforcement of the judg that has been elected ments you render.” freely, and many jour For the past year, be nalists have come cause the court had not from America, Europe been constituted, the three and other countries to federation ombudsmen man attend the elections of dated by the constitution, the members of par have carried the majority of liament. the efforts to provide judi “We have five cial protection. Speaking for parties who are mem them, Esad Muhibic urged bers of the parliament the court to join in the fight and who are repre to protect human rights. sented in all our insti “The ideal of human rights tutions of the govern is unique, but it should be ment. We have a brought closer to reality. constitutional court With the Constitutional that is functioning Court and other federal in- perfectly all right. So itutions of justice, we will Ì do not accept your oe getting closer to that The bombed-out Parliament Building: Just running the government allegation that we be ideal. ” in Bosnia, trying to find office space, is a logistics nightmare. long to a nondemocra Speaking for the inter tic country because national justices, Justice El-Khani Menzies said. “We give our word to democracy has been known in our reminded the audience that there is do everything possible” to enable country much longer than in any no peace without the rule of law. ” the court to succeed. other country.” He said that while observing the While the focus was clearly on He then explained how he, too. tragedy that befell Bosnia, “We had the new court, every speaker in had been selected, adding, “We our hearts, spirit and feeling with cluded strong expressions of grati must secure at least eight votes in you the last four years. ” tude both to the U.S. government the U.N. Security Council and 95 He added that while the inter and to the ABA’s CEELI program. votes at least in the General As national justices come from three Menzies also cited CEELI as a prin sembly. I do not see anything that different countries, three different cipal means by which “we have been could interfere in the choice in the legal systems, “The atmosphere of able to support the federation.” Security Council and the General cooperation and understanding After a brief reception, the Assembly about this status. ” Say that we have felt at the first work court held a press conference. ing he was “sorry” he had to explain ing session indicates to us that we When a reporter suggested that who he was, he then listed several win wore togemer as и we came two or the international justices ol the international institutions on from the same country and the come from “countries considered which he has served as a judge or same legal system. We actually do nondemocratic” and asked if those arbitrator. come from one system—the rule of nations had a role in the selection, After the press conference, the law —and that will be the leading Justice Ajibola of Nigeria icily court and the ABA delegation met guide in our work.” replied, “My last appointment was privately with President Zubak and U.S. Ambassador to Bosnia to the International Court of Jus Vice President Ejub Ganic. Both
ABAJ/GAtY HfNGSTlfï An Idea That Works workshops, in which Americanand Western European lawyersipqm a civil In the wake of the collapse of the law system hold drafting sessions with \ again offered their full suppuri Un Soviet Union, as Central and Eastern experts from thé partiripatingicountry. the independence of the court. Jus European countries struggled to • Legal assessmentsand,concept . tice Ibrahimagic stressed the im establish free enterprise economies papers written by Americaa-and >; portance of the court quickly ob and democratic legal systems. Homer European lawyers, reviewing draft: y taining suitable office and work constitutionsand r facilities to begin its job. Zubak, ; legislation^;-:-^wö;;4.vaN himself a lawyer, acknowledged ■ • Residentliaisons that both space and money remain and specialists.Volunteer, major concerns for the new nation lawyers reside', ш a host , but assured the court that it “had a coimtry foratteast-ayear-; friend” in the president and that he without saiaryjfroròhàir'" would be an advocate for the new legal assistance-and с -. court. technical advjœfo ftr -Uti Justice Ibrahimagic also noted govemmentsand-otherv. that many of the cases that normal legal entítíés^^vft'téy.; ly would be decided bj' the court ■•Sisferda ’jSischoof' had been sent to other institutions programs, in which.law. because the court had not been con schools in Central and stituted and urged Zubak to make (Left to right) the ABA's Robert Stein with CEELI's Eastern Europe are ’ -" sure future cases were forwarded to Homer Moyer Jr. and Mark Ellis on U.N. plane. paired with American law- the court so it could begin to estab schools. Theseprograms lish its record. Zubak chuckled and L. Mover Jr. of Washington. DC. and include student and faculty exchanges, replied. "My fear is that you will former ABA President Talbot ‘Sandy” joint research projects, and assistance soon have too much work." DAlemberte envisioned scores of in developing curriculum, libraries and And then it was over. In the American lawyers fanning out across academic administration." 1’ • ;syU.r¡;-': -span of two days, despite a lan the former Soviet bloc, providing legal CEELI volunteers also provide guage handicap, the just ices seemed assistance to the young governments. 3dvice on the establishment oí a to establish a workable, collegial re Their vision resulted in the commercial law system, judiciary ’ > >: lationship. As Justice Rigaux toid Centrai and East European law telonn, constitutional ùrüuüg.the reporters later in Zagreb, “We are Initiative. The legal aid organization establishment of bar associations, civil'■ very enthusiastic about the willing provides a wide variety of legal liberties and other aspectsrof anyfiegal ness for cooperation that has been assistance in 20 countries in the system. expressed by all six of our Bosnian region. More than 3,000 lawyers, CEELI is an outgrowth»! the-- - i colleagues. Their ethnic differences judges, law professorsand law ABA Section on IntemationaLLaw and| were not to be detected even in a students have served as pro bono Practice, which in 1990iprovided seed.- ' single moment. Even more so, they v olunteers to assist those nations. money. ' have been reaching all decisions Current programs include: The section also has sëtnp.its : ' ":r. jointly and with a lot of expertise • Technical assistance own assistance program-in Cambodia 1 and competence It is my opinion that, for creating such an atmos phere—apart from undoubted ex pertise—our Bosnian colleagues For the next three months, EULT - ! needed a lot of political wisdom.” How It Helps Bosnia created the CEELI assistâneftprogranr ; At the final dinner in Sarajevo, Coordinating the unfolding of the for Bosnia, including theworfcwith v ■ j /VBA Executive Director Stein told Centra] and East European Law the Constitutional Court": the court his trip was a “powerfully Initiative effort in Bosnia is the pro emotional experience” and he was bono work of two lawyers—an certain that the event had “un American and a Bosnian. leashed a powerful force” that will Charles S. Rudnick is a Boston establish justice in the nation. lawyer who was chief aide to a т ..Ххг Justice Boskovic pulled me Massachusetts state senator before aside and said, “You know we had going to Bosnia this past the disagreement about the robes. December. There he will oversee all And all of us were a bit apprehen CEELI programs this year as an sive about how the people would unpaid volunteer. react. When we came out I saw the Sevima Sali is a Bosnian iawver In à nation split by strife^ihe i ;. 5 : '1 look of surprise in my group (of law who has been with the project since CEELI effort has won widespread yer friends). Then I saw some of early last year, and who helped launch praise from th rough ou t th e iÿ, - T ; ' them begin to cry for joy. It was a it before lawyers from the U S. could government and courts=^cfeuimgtKe4: good day. ” be sent in. president of the ri And Justice Vuleta? “I think During February11995, while at the installation-of thé^fnfwrtirtiòiMvt-^ everything went just fine in the cer fighting was still going on. the U.S. Court, President Kresimiiiíínbakfr- s:^’ emony You heard I was against the Agency for international Development praised thé ADA and CEELI for their:;:; ... robes because our environment is allowed Mark Ellis, CEELI executive work in the country. Sodifhëveiyonetv not used to this. Well, it was very director, to go to Sarajevo to assess else who spoke.. А good and very correct. There was a the possibilities for providing technical With the court insmÉroiánd'théfiP j big tolerance." □ legal assistance in Bosnia.The agency speeches over,the CEEJiLisxjji hasft . ¡ also supplied some seed money. just begun/ Arf:. Will ‘Law of Guns’ End? * Justice minister says new court can ease tensions
s the federation of was a dispute be Bosnia-Herzegov- tween people before ina reshuffles its the war, the last sen Alegal deck to create a new tence would be, ‘I justice system, the person will sue you.’ People on whose shoulders the re expect this new court sponsibility probably falls to solve their prob heaviest is the minister of lems rightfully in justice, Mato Tadic. The justice. creation of the new Consti “But we have to tutional Court gratifies be realistic, too. The him, but he remains wary war has taken its toll as he ponders the myriad on us. and human details yet to be worked rights have been out. trampled. There will Although the justice be resistance to the ministry’s actual involve new legal system ment with the Constitu and many problems tional Court is limited, that to solve. It will be court has to be in place be hard for the people fore the other courts can be who. for so long, implemented. Whilo Ta have only known thé dic’s office will recommend law of weapons. justices for the Supreme “But I am con Court, it does not do so for vinced the law' sys the Constitutional Court. tem will ultimately At this initial point, Tadic work out. Most of our said he has “good coopera people can hardly tion on the foundation of wait until the law this court. How we will con system is in force tinue together is yet to be again. ” determined.” He said that the He stressed that what ABA’s CEELI project ever the Constitutional has assisted his of Court decides in future fice by their review 'ases, “It should be regulated by the time. If the justices want to help us, of draffs of pending laws. „aws. We will work to have a law for they will have to adjust to our situ Tadic ’s optimism, however, is that part. We will also pass on to ation and work with us to improve sometimes betrayed by his anxi the Constitutional Court for review the circumstances. ” eties. “This system will be difficult everything that is done in the lower He pointedly said he is not sat for us to implement. Remember, courts and, as well, the manage isfied with the level of material our constitution was largely made ment of the government.” support provided by the interna by Americans, so we have to adjust Tadic admitted his uneasiness tional community. “The supreme to your ways. I was a member of the at providing all the logistical sup court building was destroyed,” he delegation in Dayton, and I worked port requested for the court, given said. “If it could be rebuilt, then we on the peace agreement. Unfortu the demands by other government would have the room the courts are nately, I have to say that most of units for space and support. “Apart requesting. As it is, the court is not what we have in the Dayton agree from the president and vice presi a top priority because there are ment was imposed on us. Some of dent of the country,” he said, “this other problems, like food, electrici the solutions reached have never ministry was the one to support the ty, gas and everything.” before been tried, so there is a big new court by providing rooms, tele Nevertheless, he is convinced chance they won’t work. phones and other details. ” the court “will have a lot to do and “But we are very grateful for He has concerns that the inter it would have been better if it could this - agreement and that the war national justices may expect more have started much earlier because stopped. Without the help of the of the office support and material it will help calm political tensions.” United States, we would never have comforts they have been used to He is also optimistic that peo accomplished this. And these issues than the ministry can now afford to ple will trust the new court. He said with which we are not satisfied? We provide. “We know that we are not Bosnians have traditionally trusted will probably in a democratic way able to offer any comfort at this the courts because “whenever there manage to change them." □ Horrors of war show no concern for social class
hey li;iчe faced the rocket's red ghie and felt the bombs bursting in air—and in their Tnomes and otiices. .And thev give nroof that their ¡egal svstem is still there. 1 ho;, are -cion Sarajevo law- vers and judges who. with their col leagues. tried to keep the rule of . law alive ;n the midst of hell. In two separate sots o! interviews in the Sai ajc*\ n t EELI offices, they shared ’ experiences and their h 60 a = a .OUiг./ MARCH 1996 f 02/23/96 FRI 18:11 FAX ABA CEELI left physical and emotional scars on ovan Karadzic who is “trying to the lawyers themselves. Vukovic make this figure smaller than it is. lost her mother, and her husband There is maybe exaggeration on lost a brother who was killed while both sides.” his Bosnian army unit defended a An obvious potential problem bridge in Sarajevo. is how residents who stayed will “There were 23 direct impacts react to those who fled and are re on the court building," said Eter- turning. “This is a case of refugees ovic. “One of the justices was versus refugees. It depends on how wounded in her office during one of the people who stayed here are the attacks. There is no glass left treated, ” said Sijercic. in the windows of the court.” Srdic said problems will likely Durdevic is a refugee now liv surface at the beginning but would ing with his mother. “I used to live lessen over time. “It will depend on at Grbavica, but in May 1992,1 had the people, what they were doing to flee. My office was damaged by and where they were.” the shelling.” Durdevic said it will depend on Srdic said the municipal court “whether the people have a chance building was hit many times, but for prosperity.” “most of the important records were taken to the basement for protec s with others interviewed, tion. But the labor court, which was the lawyers stressed the in the same building as the su housing problem as the preme court, was almost completely Amost critical. “We have a technical destroyed and many files were lost problem in dealing with the in the fires.” refugees who are coming back and Lejía Sijercic, an attorney in the refugees who came into the city private practice, said lawyers have from the villages around Sarajevo,” a big job “to reconstruct all the case Srdic said. files that were destroyed.” ‘They are living in the flats of One aspect that disturbs some the people who left Sarajevo. The of the lawyers is how the war has problem is how to solve the problem been portrayed in the Western of getting the people who came press. Vukovic said the war erupted from the villages back to their orig because Croatia and especially Ser inal homes because they are used to bia “wanted bigger territories. It the lifestyles in their villages.” was pure aggreeeion. Tho people [in Durdevic said llie problem Bosnia] themselves are not inter needs to be resolved quickly be humanitarian organizations 300 ested in all that; that is a matter of cause the longer it is ignored, the Deutsche marks a month. “We suc concern to the politicians. We were more serious it will be and the ceeded in the courts in preventing just dragged in by politicians.” harder it will be to get the residents that. There have been several cases Terzic echoed her view. “[Ser to accept the law as the means of where we have acted to protect the bia] just wanted to use the fact that settling disputes. public. And while that made us feel Serbs lived here so we were at Beyond the housing problems, good about our work, still, at the tacked, ” she said. “The worst thing the lawyers are having to deal with end of the year, it is hard to explain is that many journalists are saying a significant increase in the num how we can be involved in so many that the mixture of peoples here ber of divorces filed that began dur activities and there are ncr earnings started the war because we couldn’t ing the war, according to Vukovic. to show for it.” get along. And that is just not true.” “The main reason,” Terzic ex “Attorneys shared the destiny One question arising out of the plained, “is that people were physi of the people,” replied Vukovic. Dayton accords is whether the cally separated from each other. “None of us made that much. The Serbs who chose to remain in Bos- The longer they were separated, clients could not pay, so we all had nia-Herzegovina will accept a legal the more they became strangers to to share the hardships. Even dur system that is largely controlled by each other.” ing peacetime, judges were paid 1евб Muslims and Croats. “I am a Serb,” Marie said that when the war than attorneys. It is a problem of Vukovic said, “and I am still living started, “Many women and their the state. ” here by choice.” children had to leave for safety rea Terzic said it was “a little bit Eterovic estimated that in the sons. They assumed the fighting better for the attorneys who repre Bosnia-controlled part of Sarajevo would last only a short time. But as sented people at the military court. there are 40,000 Serbs who chose the war dragged on, the separation Whoever had the opportunity To de to remain and “were participating became harder to take. ” fend the local criminals could earn in the power and life of the city So has the war destroyed the some money. Whoever was involved throughout the war and will contin people’s faith in the justice system? in political cases couldn’t earn that ue to do so.” “We lawyers still believe injus much." Marie said the estimate has tice,” Vukovic said. “All of us, as Besides seriously disrupting not been confirmed, though, and is lawyers and members of the bar as their client relationships, the war disputed by the Serb leader Rad sociation, are trying to revitalize the legal system.” kept that. The Soviet legal system Eterovic said the Bosnian peo and judges.” was never adopted here.” ple have always believed in the Generally, Sarajevan attor Srdic agreed that “the laws legal system, even before the war. neys do not seem to have an image that we studied when we went to I think that among the govern problem. “We don’t have that much law school arc alili on llie books, of a problem with people thinking ment institutions, the people still but we are expecting big changes have the greatest trust in the lawyers are money-hungry,” Vuko because the laws are just now being courts. Maybe the courts are the vic said, “because in Sarajevo, the rewritten, especially laws that will bar association has established ap only thing they still trust—so much change state property to private propriate fees for the cases to be property. You have to realize handled. Any attorney who charges that there is no country like more than the established fees will this in the world. We have a face disciplinary action from the difficult job to do. Well just bar association.” have to see how it works.” When told that the U.S. Su preme Court had ruled fee sched ike the government of ules set by bar associations illegal, ficials, the lawyers all Terzic laughed and said, “That was uШШУIhope CEELI helps ease a very smart decision from your the transition. “Our bar asso Supreme Court.” And Durdevic ciation has accepted an offer chipped in with, “We feel sorry for from CEELI to have a work attorneys of the United States. ” shop discussing the indepen When the laughter subsided, he dence of justices,” Marie said. added, “Seriously, attorneys are That will open the question probably happier here, but we are of division of power which poor.” has been written on paper, All lawyers are watching the but so far it is only on paper creation of the federation’s Consti and not in real life.” tutional Court with a mixture of But is the public ready hope and doubt. When Eterovic for this kind of change? “Yes, said he hoped the new court “vili because the legal system affect our practice, ” Vukovic quick seems to be the only place ly added: “In a positive way. ” people can ask for help,” Eterovic reminded the group Jelica Vukovic: Politiciens 'dragged os into war. Eterovic replied. “In the pre that “when we talk about the Con vious system, we had a sys so that even now we have people stitutional Court system, Ameri tem that was not that open to the cans helped to bring about the head coming to the courts with requests people. In fact, the attorneys and that we shouldn’t be addressing be of this system of justice. But they cause it is not our function." forget that the body of the ju Durdevic said assessing the dicial system is not in place. confidence of the people “is a verv “According to this con difficult issue in the context of the stitution, which I will call an war because, during the war. there American constitution, there was more manipulation than real are ombudsmen and the Con law. The biggest problem is to make stitutional Court. But this the new law system work." won’t work unless the lower That prompted Srdic to echo, courts are working as well. "By all means, the legal system will We have to build our judicial have to regain the trust of the peo system so that it is indepen ple.” y dent of the government and Regaining that trust will be the legislature ’s powers from made all the more difficult by the top to bottom.” current transition from the old And it is the rebuilding legal system to the new one. that concerns the lawyers. “The problem is that we still Because of a drop in law have almost the same legal system school graduates, said Terzic. we had before the war, ”' said “We are likely facing the Eterovic. ‘There have been very few problem of not having enough changes in the law so far. Before lawyers to work on the prob the war, we were a socialistic coun=_. lems we will have to deal with try, but it was not a Russian kind of in the future.” Perhaps Durdevic best socialism. We attorneys had our Zdenko Eterovic: The people still trust the courts. own private practices. ” summed up the group’s views Marie stressed that the system with this comment: “Our prosecutors were largely clerks in biggest wish as attorneys and was modeled more on the “German the system. With this workshop system before the war than it was judges is that we have an indepen with CEELI, we hope to work to dent judiciary so we can all do our on the Russian system and we just bring back the rights for attorneys jobs the right way. ” □ V“* f«tss.OA.Mi Sagoo The Tale of a Survivor Despite bombardments, law school refuses to close ritics of the legal profes tem. “Before the aggression in our sion often take great fering was the destruction of country', there were a lot of changes amusement in the oft-mis Bosnia by force,” Begic said in mea in the political and economic field.” sured tnne.4 “Ял it very difficult Cconstrued line in ShakespearesBegic said. “And these reforms in to explain to the students about Henry VI where the murderer Dick cluded the law system; we changed the Butcher states: “The first thing democracy, the free market and the we do, let s kill all the law our programs for education. We rights of the individual. During the yers.” past three years, we have It isn t so funny, how only the criteria of ethnic ever, when you see evi rights.” dence of such a threat liter- He said some students V being attempted. Such have questioned why some -he case with the Saraje democratic nations in Eu vo Law School. rope opted to support nation “As you can see, our al divisions along ethnic building is just on the face lines rather than promote of the front line,” Kasim the multiethnic nature of Begic, the dean of the law Bosnia. school, slowly began. “The He expects, however, to confrontation line is sur get help from U.S. law- rounding us on ali sides on schools when he will be part the slopes of the moun °f a . ^aw school delegation tain. ” visiting schools as part of the Indeed the school on ABA’s CEELI “sister law' the Miljacka River in down school” program. town Sarajevo retains the He is also appreciative visible scars from the mas of the donation of over 600 sive shelling it took during new books by CEELI. When the war. Despite the at the shelling destroyed every tacks, the law school re thing in the national library, mained open throughout the law school library be the war. came the largest library in Asked about casual the country. While hé is ties. Begic grimaced and The war brought home to students the need for the rule of grateful, Begic is emphatic about ensuring that the law a slow draw on his cig- law in a democratic system, soys Dean Kasim Begic. i. -e. "We don't have exact school does not become a data about students, but manv U.S. clone. were following tracks of democracy “I want to emphasize that this were killed or wounded. Two in and the free market. structors were killed and two were law school’s students and profes wounded.” “Nu« we professors have dou ble the obligation. We have to con sors have managed to preserve the He added that many of the pro traditional values of Bosnia-Herze tinue and improve what was stopped fessors had to move when their res govina—a multicultural, multieth by the war. ” idences were destroyed by the nic Bosnia-Herzegovina.” Begic is quick to laud the ef shelling. He said specifics on the He said that the war vividly forts of the U.S. government. “I am students were unknown because demonstrated to the students why saying this because I was included the law school is the largest in the the rule of law is critical to resolv in all these international efforts ing disputes. university—between 3,000 and about Bosnia-Herzegovina and all 4,000 students when the war broke “In my opinion, in most cases, these arrangements. The difference this war had a positive effect on out. He added, though, that some of between the European Community the students were part-time be- most students’ minds regarding and the American government is ob V cause they also held jobs. During their understanding about the the past ЗЙ years, 310 lawyers were vious from the law point of view. “The international community meaning of the law for a democrat ic system. And despite everything, graduated. Today, the war has re is focusing on human rights, but they are convinced they are on the duced the student total there to Europe is insisting on collective 1,100, with another 600 in Zenica. right track. ” n-j 11 n,c excluding indi Begic concluded the interview which was opened this year. vidual human rights. The American As with all other aspects of life with a brief tour of the facilities. attitude was completely different.” Each corner turned evokes a mem in Bosnia, the law school was un All of which has left the law dergoing transition from the com students somewhat confused. “What ory of when each shell hit and what damage it caused to the law school munist system to a free market sys the European Community was of that refused to be killed. □ **fS5/CAA4li SAGOC 02/23/96 FRI 18:18 FAX ABA CEELI A Voice for the People Multiethnic ombudsmen will press cases for everyone n the past four years, the omi the government officials. the majority of cases. “The war nous phrase “ethnic cleansing ” “We are the first institution in came to the forefront in the forced many to leave their homes,” the former Yugoslavia that was in Muhibic said. “The state didn’t have IAmerican media. Chillingly remiaugurated in the territory just for good ways to protect their property. niscent of the Holocaust, the the protection of human rights,” ex human rights violations by Bosnian Few records were kept as to owner- plained Branka Raguz, who is sliip or occupancy rights. Serbs to eradicate Muslims from Croat. “We started with our work a the eastern part of Bosnia-Herze- “We can enforce our constitu year ago during llie war when tional obligation to allow the people human rights who fled as refugees to get their were at the low homes back because refugees from est level in the other parts of the territory who world here. We came to Sarajevo are now in these proved that to homes. Also, when residents had morrow is too their houses destroyed in the war, late where hu they moved into the apartment of man rights are someone who left. Mow it has to be concerned. We sorted out legally. ” have to act to Muhibic added, “The authori day. ” ties use the excuse that there is no All three are law now regulating land or how ref emphatic about ugees should go to their homes." keeping ethnic or Another rights violation, he nationalistic con said, is regulations that prohibit siderations from freedom of movement, especially in affecting their Sarajevo and Mostar. Because Bos- work. “While we nia needed so'diers for its army, it are representa severely limited a person’s right to tive of all three leave. “Even people who were very ethnic groups, we sick and needed treatment some are not represen where else,” he said, “were not per tatives of these mitted to leave.” ---- peoples,” said Ra- Ombudsmen Branka ftaguz, Esad Muhibic and He said a third major problem Vero Jovanovic. guz. is that of citizenship. “According to From the govina in an effort to create a existing law, citizens of other for beginning, we understood that it is mer Yugoslav districts that became “Greater Serbia ” shocked the world. not possible to divide human rights While ethnic cleansing was the countries were forced against their into Croatian, Muslim and Serbian will to become citizens of Bosnia- worst form of human rights viola human rights. They are universal. tions, the war and centuries-old Herzegovina if they were living We showed we can work and live to here at that moment. The reason ethnic hatreds unleashed wide gether. We will show that it is possi for this was strictly military be spread violations on a lesser scale ble for the people to live together.” by all three sides as well. As the In cause they needed more soldiers.” Vera Jovanovic, a Serb, said, A very big problem, Muhibic ternational Court of Justice at The “We try to the find the cause when said, is that of missing persons. Hague now focuses on crimes we receive individual complaints of “Just yesterday it was announced . against humanity committed in the rights violations. We also check for that they couldn’t agree on prisoner war, it is left to ombudsmen of the the applicable laws. ” She said the Federation of Bosnia-Horaogovina exchange because of the failure to work initially began in Sarajevo in account foi die inisaiug. We have to silt through and deal with the January 1995 and has now “spread lesser, but mounting, claims of cases of parents desperately look out through our network of branch ing for their children." human rights violations within the offices throughout the federation.” federation. Muhibic added, “Some authori “People call or come to our of ties are already saying we are ene Three Bosnians—a Muslim, a fices every day or they send in writ mies of the country simply because Croat and a Serb—are constitution ten complaints,” said Eead Muhibic, ally mandated to ferret out abuse we are asking the law to be imple a Muslim. “Just in Sarajevo, we had mented. Unfortunately, when basic regardless of ethnic considerations, 5,000 different interviews with peo human rights are violated, every’ and are guaranteed independence. ple in the past year, which resulted party says, “My nationalism is bet In their first year of operation, in 800 cases we are working on.” ter than [yours]. And my national they have already managed to make 'Пт problems in all the cities ism is the right kind of nationalism themselves unpopular with some of are similar. Housing disputes form and you are wrong.’ ” gj S-fA PftfSVOAM.1 SAGOU