Abstract
After the war in Bosnia and Herzegovina (BiH) ended, BiH was subjected to a sweeping array of reform initiatives designed to create a robust and independent judiciary. In an era when judicial reform (and Rule of Law in general) was a popular investment for international aid funding, the BiH reform, implemented mostly in 2002-04, stood out as one of the most comprehensive efforts ever. As with most of these efforts, “judicial independence” was arguably the most central and unifying objective of the reformers. Now, after more than twenty years, it appears that the BiH judiciary has fallen well short of the ideals envisioned for it. Even as a substantial measure of judicial independence has been achieved, and continues to be a fiercely defended priority, the BiH judiciary remains vulnerable to corruption. But judicial independence has not been sufficient to resolve, and guard against, the problems of corruption and inefficiency in the BiH courts. And there is reason to believe that undue emphasis on judicial independence can exacerbate these problems, given the integrity deficits in the system.Surveys of all judges and prosecutors in BiH that I conducted in 2011 and again in 2024 reveal that while good progress was made during the first decade of the reforms, the system established by international reformers in the early 2000s was not robust enough to fully withstand threats to the Rule of Law that crept in during the second decade. At the same time, while the impunity demonstrated by the HJPC in 2019 is deeply troubling, and the leniency of sanctions for judicial misconduct is concerning, it is difficult to defend the proposition that the system would have been better served by less judicial independence. Indeed, the other branches of government in BiH are far more likely to serve as a corrupting influence than as any kind of meaningful check on judicial power or malfeasance. A robust system of discipline, strong enough to remove judges who cannot be trusted to act with integrity, is important. But the disciplinary structures must remain internal to the judiciary if we are to retain the institutional independence so vital to the functioning of the system.The upshot is that—if the HJPC can rise to the occasion, learning lessons from the accountability scandals that started in 2019, and embracing a new Law on the HJPC (now being promoted by the Venice Commission) that will help ensure that appointments are done according to proper criteria and procedure—there is still hope for the BiH judiciary. Some sound structures are in place. If the EU and others are willing to continue to play a role, using their influence to help empower those who are pushing for reform and for better accountability practices from the inside, the judiciary is likely to remain the most functional of all of the organs of BiH’s government. The experience in BiH judicial reform contains important lessons for other countries and other efforts to reform the rule of law. One of those key lessons is that judicial independence will never be the solution that will solve all the ills of the system. Absent a substantial endowment of integrity in the system and in its key players, independence has the potential to become part of the problem. Accordingly, integrity—embodied in the judicial officers, embedded in the culture, and policed within the judiciary—is a necessary precursor to the success of any reform that enhances independence, and absent that integrity in the system, judicial independence may do more harm than good.