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Background

The years of efforts in conflict resolution and development of conflict-prone regions of the world have emphasized the importance of security sector reform. The United Nations (UN) has recognized its importance in the Resolution on millennium development goals (UN 2000), which acknowledged that security from disorder, crime, and violence is critical for reducing poverty and achieving sustainable economic, social, and political development. Efforts of various international organizations involved in mitigating violent conflicts have assisted in raising awareness of the importance of a country’s security sector and the important role that it plays in stabilizing states and regions that are prone to conflict. Bosnia was no exception in that regard, as peace building efforts in the country have shown in years following the end of the armed conflict.

Following the signing of the Dayton Peace Agreement (DPA), Bosnia found itself in a very difficult situation vis-à-vis stable security system, as the system itself was over-fragmented, with different structures in different parts of the country being in charge of it. DPA left the responsibilities for defense, law enforcement, intelligence, and even most levels of the judiciary to two entities,Footnote 1 the Federation of Bosnia and Herzegovina (FBiH) and Republika Srpska (RS). This came as a result of ethnic divisions which were a direct consequence of the 1992–1995 conflict.

In spite of intense ethnic tensions, significant progress was made in the security sector under the auspices of the international community. However, recent political developments, which will be discussed in the coming chapters, threaten to nullify the positive developments. This comes as a result of opposing views that different ethnic groups have over the future of the country. Therefore, the progress made in the security sector is currently being challenged by the RS government. It claims that institutions which were established while reforming the security sector are not in line with the provisions of the DPA. This mainly relates to those institutions that were either imposed by the Office of High Representative (OHR)Footnote 2 or were put in place under a significant pressure by the international community. The reason behind these claims lays in the fact that the RS government has been constantly trying to fight the establishment of a strong state of BiH, which could eventually derogate prerogatives of entity governments, in this case the RS government. This also reveals another important characteristic of the reform of the security sector in Bosnia which makes it different from neighboring countries. In December 2009, in their report entitled: “Independence of Judiciary: Undue Pressure on BiH Judicial Institutions” the Organization for Security and Cooperation in Europe (OSCE) reported to be “deeply concerned about the nature of statements expressed by some prominent political representatives, particularly but not exclusively from the Republika Srpska, in relation to the work of the Court of BiH and BiH Prosecutor’s Office. While the executive and legislative powers may legitimately scrutinize and comment on the functioning of the judiciary, the Mission’s assessment is that these statements, due to their harsh content, unsubstantiated nature, and frequency, overstep the limits of acceptable criticism and constitute undue pressure on these independent institutions” (OSCE 2009).

Thanks to the provisions of the DPA, the peace building process in Bosnia involved a range of international organizations, most of them designated to implement certain aspects of the agreement. They ultimately evolved into the key players of the reform of security sector in the country. In that regard, some of the most important organizations in this process were the UN, the North Atlantic Treaty Organization (NATO), the European Union (EU), the OSCE, and the Council of Europe (CoE). While NATO was involved mainly with the military aspects of security, the OHR was in charge of the civilian aspects of the peace agreement and for the overall coordination of international organizations (Hadzovic 2009).

Security institutions established through security sector reform—facilitated by the international community in the country—are Border Police, State Investigation and Protection Agency, Court and Prosecutor’s Office of BiH, Indirect Taxation Agency, and Ministry of Security. These institutions have prerogatives that cover the entire country and are important factors in terms of the accountability discussed in this paper.Footnote 3

Accountability Mechanisms of the Security Sector

According to Schedler (1999), accountability refers to the various norms, practices and institutions whose purpose is to hold public officials (and other bodies) responsible for their actions and for the outcomes of those actions. It is concerned, in particular, to prevent and redress abuses of power. Accordingly, this definition of accountability obliges public officials to inform the public of their actions and to provide reasonable explanations for them. Representatives of government are constantly required to answer to those they represent. They are required to act upon criticisms or requirements that they encounter, and to accept responsibility for failure, incompetence, or deception. Thus, accountability requires transparency in the decision-making process, as it assumes the necessity of sharing information with the public in a timely manner. This, of course, cannot pertain unconditionally to all aspects of governance, as there is a need to adhere to certain legal requirements of confidentiality for the sake of national security.

The present definition therefore helps us not only to specify the main aspects of accountability, but also to identify key areas of consideration for accountability in Bosnia and Herzegovina. These are as follows:

  • The political situation.

  • State institutions.

  • Civil society and the media.

Each of these areas is linked to the reform of the security sector and has certain specificities which can mainly be attributed to the postwar context, post-socialism era, aspirations towards EU integration and, most importantly, the ethnic complexity of Bosnian society. As the analysis of these areas will show, this environment is significantly affecting security institutions, especially those in charge of law enforcement, and it adversely affects the quest for accountability. One of the key areas to be considered in that regard is the current political situation in the country which is addressed in the following section.

Political Situation

Even today, 17 years after the conflict, lack of accountability exists in all spheres of Bosnian society. This does not mean, however, that accountability mechanisms do not exist. On the contrary, accountability mechanisms have been developed in most of the sectors, mainly due to pressure from the international community.

The current situation in Bosnian society is a direct consequence of country’s recent history. BiH is a transitional society which was recently transformed from a single-party socialist system into a pluralistic society. However, in spite of the fact that this process of transformation into pluralism in BiH began a long time ago,Footnote 4 serious challenges persist. This is not only the consequence of a situation where all political parties in the country are organized along ethnic lines, but also because of the existence of many actions which are incompatible with democracy, such as obvious attempts of the largest ethnic groups to establish a democratic polity which subjugates basic tenets of democracy to the ones of ethnic group interests.Footnote 5 The current situation most probably can be considered as a legacy of the recent armed conflict between the three ethnic groups, which intensified interethnic polarization and massively strengthened the political domination of ethno-nationalist political parties in the post-conflict period. Moreover, the DPA, signed in 1995, which brought the war to an end, not only created an extremely cumbersome policy process that frequently results in deadlock, but it also left unresolved the conflicts that had come to the fore in the 1992–1995 war and enshrined the ethno-nationalist principle as the foundation of public discourse (Vogel 2006).

Consequently, the overall situation in BiH, including its security sector, may be described as being in a state of “unfinished peace,” whereas elected representatives of all three constituent peoplesFootnote 6 repeatedly polarize the political situation in order to hamper progress and the establishment of core democratic values and processes. Heated rhetoric has become more frequent in the past several years, which coincides with the intentions of the international community to gradually transfer the ownership over the reform process to local politicians. This deterioration has been noted by many analysts familiar with the situation in the Western Balkans. For example, a study by the United States Institute of Peace (Bassuener and Lyon 2009) argues that “today, political dialogue in Bosnia is sadly reminiscent of the immediate pre-war (and post-war) era. Aggressive rhetoric has escalated the ambient level of uncertainty and tension among Bosnia’s citizens to a postwar high. Politicians from RS and the Federation often use language designed to raise tensions and polarize the population.”

The main characteristics of the institutional structure, including that of the security sector, are over-fragmentation, antagonism between different political and ethnic interests, insufficient capacities in terms of skills and staffing structures, as well as lack of appropriate resources. International actors involved in the reform processes have been confronting the inconsistencies such as facing the situations where establishing adequate capacities do not necessarily secure sufficient level of operability or, similarly, situations where providing capacity-building activities might not necessarily result in the improvement of execution of day-to-day tasks. This also represents one of the main obstacles for BiH’s aspirations towards Euro-Atlantic integration as concluded by the Foreign Policy Initiative BiH: “…besides an absence of political will to render the system functional, BiH is also plagued by an incompetent, inefficient and ill-informed public administration that has been protected by the Laws on Civil Service at state and entity levels. Even if or when political consensus is reached, the inert public administration will seriously hamper BiH’s future chances of successful EU integration” (Foreign Policy Initiative BiH 2009).

Additionally, legislative authorities have been influenced by numerous lobbyists; executive authorities are overburdened with a multitude of organizational flaws and inadequate financial and technical support; staffing structures are not sufficient to face current challenges; and corruption is pervasive at all levels of administration. According to the 2009 European Commission’s (EC) Progress Report, Bosnia and Herzegovina has not yet achieved any significant progress in the fight against corruption (European Commission 2009a, b). Bosnia and Herzegovina is the worst ranked European country on this list. The EC Progress Report points to the same problems year after year, of which corruption is one of the most distinctive. In each report, Bosnia and Herzegovina makes either “insufficient” or “minimal” progress, which is a direct consequence of the lack of political will to fulfill European Union anticorruption standards. That is the main reason why Transparency International has placed Bosnia and Herzegovina on 99th place of the 2009 Corruption List, out of 106 countries ranked worldwide (Transparency International 2009). It is for this reason that progress in BiH is stagnant. In fact, the only thing that seems to be advancing is corruption.

Taking into account all these institutional deviations, it is not a surprise that many social norms and values have been seriously challenged in the Bosnian context. For example, although the Strategy against Juvenile Offending for Bosnia and Herzegovina for the period 2006–2010, along with the Action Plan 2006–2010, was adopted on 27 July 2006 by the Council of Ministers of BiH (the body established within the scope of DPA equivalent to the state government) under the auspices of international community, it only came into force two years later. The delay was due to the fact that the BiH Ministry for Human Rights and Refugees, which was tasked to propose members of a coordination board, failed to reach consensus about the membership. The indifferent attitude of responsible officials towards the execution of the Council’s decision ended only after several brutal murder cases committed by minors triggered the protests in the capital city.

These developments are indicative of the unnecessary politicization of almost all issues in Bosnian society, a situation that could seriously hamper the establishment of effective security mechanisms. The crucial problem in BiH is the lack of consensus even on basic issues such as the future of BiH, that is, whether the country is going to be centralized or decentralized. This is further accentuated by issues that came to the fore as a result of the conflict such as the categorization of the conflict as an aggression by neighboring countries or a civil war; the understanding of war crimes and seeing the perpetrators as war criminals or as national heroes; as well as the strategic positioning of the country—self-reliant or pursuing some regional options. Under such circumstances, it is very difficult, if not impossible, to establish an effective security system which will equally serve all citizens. It is also almost impossible to have accountability introduced and entrenched in such a system as most officials are accountable only to their political parties’ headquarters rather than to the public whose interests they should be protecting in the first place. This of course affects the functioning of institutions at the state level that are supposed to deal with security issues, and it is discussed in greater detail in the following section.

State Institutions

The state institutions of Bosnia and Herzegovina that are responsible for the design, approval, and implementation of security policy are the Presidency of Bosnia and Herzegovina, the Parliament of Bosnia and Herzegovina, the Council of Ministers of Bosnia and Herzegovina, the Armed Forces of Bosnia and Herzegovina, the High Judicial and Prosecutorial Council, the Court of Bosnia and Herzegovina, the Prosecutor’s Office of Bosnia and Herzegovina, the Ministry of Security of Bosnia and Herzegovina, including its organizational units, the State Investigation and Protection Agency, the Border Police, the Service for Foreigners Affairs, the Intelligence Security Agency of Bosnia and Herzegovina, and the Indirect Taxation Administration.Footnote 7

It should be noted that only the first three institutions from this list have been provided for by the DPA. These are the Presidency, the Parliament, and the Council of Ministers. The remaining institutions were established through reform processes that were mainly the result of enactment or “arm twisting” by the international community, primarily the OHR (Hadzovic 2009). As a result, the functioning of these institutions has been undermined by the entity governments—mostly RS, but there have been a few examples that involved the FBiH as well—as their sole existence is seen as a threat to politicians whose primary concern are interests of their entities and their own ethnic group. Needless to say, this further undermines the attempts at accountability that could be exercised by these institutions. In this context, it is worth mentioning the issue of police reform that was seen as the single biggest threat that these politicians have encountered during the reform of security sector. As Wilfried Martens, a former Belgian Prime Minister, who chaired the Police Restructuring Commission established by Lord Paddy Ashdown in July 2004, notes: “the core of the problem was of a political nature: how could I possibly awaken the political will of the representatives of the three ethnicities to meet one of the basic requirements for a common state?” (European Union Police Mission 2007)

Police Reform

Despite the attempts of the European Union (EU) and the OHR to pursue meaningful reform of the police service in BiH, this proved to be one of the least successful undertakings of the international community. Originally, it was envisaged that police reform would be based on the three principles whereby the police would be organized at the state level, be financed from a single budget, and be free of political interference. Not even the fact that that this was a condition for the initiation of accession talks and the signing of the Stabilization and Association Agreement with EU has helped to have a successful police reform. Instead, the EU has essentially abandoned these principles. Following a lengthy and exhausting process and negotiations, in April 2008, the Parliamentary Assembly of Bosnia and Herzegovina adopted two police reform-related laws which were accepted by the European Union as a satisfactory sign of progress: the Law on Directorate for Coordination of Police and Agencies for Support to Police Structure of BiH, and the Law on Independent and Supervisory Bodies of the Police Structure of BiH.

These laws were seen as a watered-down version of the originally envisioned police reform. They prescribed the establishment of a Directorate for the Coordination of Police Bodies, as well as seven new police coordination bodies at the state level that will not directly affect the autonomy of the various police institutions at entity and cantonal levels. These shall include Directorate for Coordination of Police Bodies, Agency for Forensic Examinations and Expertise, Agency for Education and Advanced Training of Personnel, Agency for Police Support, Independent Board, Board for Complaints of Police Officials, and Public Complaints Board. Even though over the years these institutions have gradually become more operational, the EU Progress Report for BiH in 2011 noted that institutions created by the police reform laws were established at a slow pace. The lack of institutionalized cooperation between all law enforcement agencies and the limited strategic guidance remain challenges for efforts to achieve more efficient policing (European Commission 2011).

Accountability Mechanisms

Despite the fact that police reform has essentially failed, the reform efforts have eventually resulted in the establishment of some law enforcement agencies and institutions that are functioning, though with some difficulties. As in democracies, oversight of intelligence tends to be a shared responsibility of the executive and legislative powers. Bosnia is no exception in that regard. There is no doubt that democratic parliamentary control of military forces, police forces, and intelligence services, among other security structures, by constitutionally established authorities vested with democratic legitimacy is indispensable to the stability and security of BiH and the region, as well as for upholding the rule of law.Footnote 8

Given that international actors in BiH have played a key role in the introduction of the democratic instruments, the Bosnian model has somehow integrated their main characteristics with adequate adaptations to the local circumstances. For instance, the oversight in the USA is unique to the extent to which responsibilities and powers reside in the legislature. Parliaments in most countries have committees devoted to intelligence oversight, but none of these committees have equal authority (Lowenthal 2000). To that extent, BiH, as a newly established parliamentary democracy, has through its Parliamentary Assembly established a Joint Committee on Defense and Security in December 2003. Besides the defense sector, the Committee is responsible for Parliamentary oversight over the following: the BiH Ministry of Security, the BiH Ministry of Foreign Trade and Economic Relations (concerning weapons import/export, and production), Border Police, State Investigation and Protection Agency (SIPA), National Interpol Office, and BiH Mine Action Centre (BH MAC). The Committee comprises 12 members, 6 from each House of the Parliament. The Committee has a chair-person and two deputies reflecting the country’s ethnic balance. Since its inception, the Committee has established very intensive international cooperation mainly through bilateral cooperation with similar parliamentary bodies in other countries or implementation of different staff development activities for relevant domestic institutions. For instance, in 2009 the Committee organized three bilateral visits (Slovenia, the USA, and Italy) and hosted the same number of foreign delegations (Slovenia, Czech Republic, and Sweden). At the same time, the Committee organized five seminars for international and national counterparts, while its members attended more than 50 seminars and workshops organized in BiH and abroad. In addition to this, the Committee reviewed and commented on 11 proposals of the law which were then forwarded to relevant institutions in line with established parliamentary procedures.

The establishment of this Committee has set a good example for other parliamentary oversight bodies such as the Joint Security-Intelligence Committee for Oversight over the Intelligence Security Agency (OSA), which was established based on the legislation of the BiH Intelligence Service. Since its establishment in April 2004, the committee monitored the challenging formation of the Intelligence Security Agency and lobbied the Parliamentary Assembly of Bosnia and Herzegovina to adopt legislation that would ensure adequate democratic oversight of the agency. The establishment of this committee has been playing a significant role in the democratization of the intelligence sector in the country, given the fact that, after the DPA, three intelligence services operated in BiH. These were defined according to the major ethnic constituencies (i.e., Serbs, Croats, and Bosniaks). In 2002 a new structure was agreed upon, which established two intelligence agencies: Intelligence Security Service (FOSS) in the FBiH and Intelligence and Security Service (OBS) in the RS. However, after several affairs had been revealed to the public through local media, it became obvious that the ethnic character of these agencies cannot be preserved. One case relates to the “Orao” affair where high-ranking officials from the RS were implicated in selling aircraft parts to Iraq, which constituted a breach of the UN embargo. Additionally, in March 2003, another affair involving RS defense structures was made public. International Stabilization Forces (SFOR) conducted a raid in the RS Parliament building and found that the intelligence unit of the Army of Republika SrpskaFootnote 9 was conducting surveillance and spying on international officials from the USA, OHR, NATO, and EU, as well as FBiH officials (Hadzovic 2009). These cases, along with an ongoing defense reform, facilitated the establishment of a single intelligence service and provided the necessary leverage for the OHR to pursue this reform and to push local counterparts into accepting the reform agenda. This process was particularly supported by some members of the Bosniak political elite in the country such as Šefik Džaferović, the Speaker of the BiH Parliament’s House of Representatives who stated that “there is a need to address the issue of intelligence structures in the country and the key role in the process should be played by the international community” (Večernji list 2003).

However, the legacy of war was not the only obstacle in establishing the intelligence service, provided that it had a very negative perception as an instrument of political control in the former communist system. Nerzuk Curak, professor at the Faculty of Political Science at the University of Sarajevo, describes the intelligence sector as “a dinosaur resisting the modern age whose resistance is supported by uninventive and narrow-minded politicians who would like to have their people in the intelligence community and who would provide to them … intelligence which will be used by them to increase their political power” (Curak 2004).

In terms of cooperation with different spheres of society, it is important to mention that there is little dialogue between the media, academia, and the intelligence service in BiH. Denis Hadzovic, Secretary General of the Centre for Security Studies in Sarajevo, blames this on the underdeveloped civil society sector (Hadzović 2007). On the other hand, in spite of the lack of quantitative indicators of the effectiveness of the parliamentary committee, it is certain that this body has been regularly communicating with the public, as well as it has been involved in many bilateral and multilateral activities—seminars, conferences, etc. The committee has been regularly publishing its activity reports, while its members have been responsive to media with regard to commenting on various security-related issues.

In addition to these two committees, it should be mentioned that both entities have parliaments which also maintain parliamentary oversight committees. Originally, these committees had jurisdiction over former ministries of defense and interior of the FBiH and the RS. However, following the full transfer of defense responsibilities to the state level—on January 01, 2006—the entity parliamentary committees remained responsible for overseeing their respective entity ministries of interior and their subordinated police forces. In FBiH, besides the FBiH Ministry of Interior and FBiH Police Administration, there are ten cantonal ministries of interior and police administrations attached to them, while the MoI and police administration are centralized in the RS.

Civil Society and the Media

Civil society and the media can play a significant role in making public officials accountable to the public. As a transitional country, Bosnia is facing new challenges in this regard as its civil society sector only recently started to take hold. Despite the fact that the establishment of nongovernmental civil society organizations (CSOs) was allowed during the period of socialism (1945–1992), these were mainly restricted to the sports and cultural spheres. Since the signing of the DPA, there has been a boom of different CSOs throughout the country. Since their registration is allowed at different levels of governance, which mainly depends on the scope of their activities and geographical area in which they are active, it is very difficult to identify their exact number. According to the information provided by the International Council of Voluntary Agencies (ICVA 2005), there were 6,528 CSOs and 70 foundations registered in BiH in 2005. This relatively large number of registered organizations does not mean that there is a kind of “revolution” within civil society. In fact, many of these organizations deal with strictly limited issues, such as those pertinent to honeybee keepers and fishermen associations and have quite a limited membership.Footnote 10 Additionally, even though the number of existing CSOs is one of the main parameters for the evaluation of the maturity of civil society, this is not the only indicator of a truly capable civil sector. The fact that the vast majority of these CSOs are financed solely by different levels of governance, e.g., municipalities, cities, cantons, and entities, indicates that their independence and impartiality may be seriously challenged.

In addition to this, findings of the consulting firm “Atos Consulting,” which has since 2004 been working in the Balkans on issues of justice, security, and aid effectiveness on behalf of the United Kingdom Government, show that “in the justice and security sectors in BiH engagement of CSOs is currently limited and sporadic” (Worner 2009). They also found that compared with other institutions in their sectors, the Ministry of Security and the Ministry of Justice are still relatively weak and “neither institution has a strong track record in CSO engagement. Furthermore, little is known about the CSOs that operate at the state level in the justice and security fields, or that are active on issues that come under the policy remits of the state ministries” (Worner 2009).

At the same time, the research which was conducted in 2008 within the scope of the project implemented by the British Embassy in BiH—Conflict Prevention Pool—showed that representatives from the aforementioned ministries demonstrate little understanding of CSOs and particularly about CSOs that exist in their areas of responsibility or how to engage with them. For instance, more than two-thirds of interviewees could not provide satisfactory definition of CSOs and their role. According to the opinion of the interviewees, the most important obstacles for improving the engagement with CSOs are lack of budgetary means, inadequate staffing, and confidentiality of their work. Likewise, representatives from CSOs have little understanding of the role and activities of the Ministry of Justice and Ministry of Security and have little positive experience in engaging with them (Warner 2009).

The most logical explanation for these results is that the extent of CSO engagement at state level is restricted by the mandates of both ministries. Many of the ministries’ functions are related to sectoral coordination and harmonization, or focused on international cooperation. As a result, only a limited number of sectors in these ministries will find natural partners in BiH civil society and vice versa. This, however, does not prevent CSOs from advocating changes in this regard, changes that could bring about more accountability within this sector.

At the same time, the relationship between the media and the security sector is a complicated one, and is not free of tensions. This is particularly true when it comes to the military, a sector which is traditionally rarely open to public scrutiny. A more effective role of civil society in security issues is a necessary outcome of a broader concept of security, which has been defined differently by various authors. For instance, Kofi Annan provides the following definition: “Human security, in its broadest sense, embraces far more than the absence of violent conflict. It encompasses human rights, good governance, access to education and health care and ensuring that each individual has opportunities and choices to fulfill his or her potential. Every step in this direction is also a step towards reducing poverty, achieving economic growth and preventing conflict. Freedom from want, freedom from fear, and the freedom of future generations to inherit a healthy natural environment—these are the interrelated building blocks of human—and therefore national security” (Kofi 2000). In this respect, the recent changes in the perception and meaning of security render the traditional limited access to security no longer acceptable. The media play an important role in accelerating this process and in keeping the public informed on what security is about in its own country (Caparini 2004).

The second half of the twentieth century in Bosnia can be described as one of repression of civil society and of the state-dominated media. During the 1990s’ war, the situation aggravated and continuing uncertainty characterized state and interethnic relations. Even though the DPA and Constitution of BiH said almost nothing about the media, in December 1997 the Independent Media Commission was established at the Bonn Conference in order to set norms for public broadcasters. These norms regulate issues such as the establishment of public broadcasters, financing, freedom of information, and decriminalization of libel and defamation. This was followed by the 1998 Madrid Conference where a state strategy for media reform was adopted which led to comprehensive reform of the media laws in both entities and the establishment of a public broadcasting service at the state level. However, since these reforms were initiated and completely controlled by the international community,Footnote 11 domestic politicians who oppose establishment of a strong state declared them as nondemocratic and nontransparent in spite of the fact that these reforms were imposed for the sole purpose of creating media pluralism and preventing usage of the media for the “verbal war.” Despite these significant improvements, the local media are still facing many challenges. Some of these are the common challenges which are present in the rest of the world (public or private ownership, profitability vs. public education, Internet era, etc.), while other challenges are specific to the Bosnian society. Such challenges, inter alia, include demands to establish equal ethnic representation of employees in public media, and more serious political pressure on the media and threats against journalists that increased in the run-up to the elections, with reports of government interference, intimidation, and surveillance (Freedom House 2011).

The experiences of other countries in the region, such as those in Croatia, Serbia, and Kosovo, showed that the democratization of media seemed to be “a gigantic experiment guided by an infinite number of theories” (Sukosd and Bajomi-Lazar 2003), as many organizations that were working on this issue came from various countries accustomed to media models that differ significantly. The assistance which was provided and directed in this way most often by the international community seemed to be insufficient to establish authentic reform of the media. In addition to this, in the past several years, international aid to BiH seemed to be drying up and the whole process of democratization of the media has slowed down. This has undermined efforts aimed at increasing accountability of Bosnian officials.

Migration Management

As a part of the security sector, management of both regular and irregular migration has a prominent position. Moreover, this field is important because in the former Yugoslavia, Bosnia and Herzegovina had no international borders, meaning that it did not have any real competencies to regulate migration. After the war, the situation changed and the process of the establishment of a migration management system began with strong support from the international community.

Bosnia’s geographical position and new geopolitical situation in the Balkans have brought BiH at the crossroads of migration and trafficking routes from “the East” to “the West.” Moreover, current globalization trends cause rapid changes in the area of migration and these will most probably be continued following the 9/11 attacks, given that the countries in the developed world have begun closing down and imposing migratory regulations. In Europe these trends triggered the development of various information systems (EURODAC system that registers asylum seekers and illegal (irregular) migrants, Schengen Information System, Visa Information System, etc.) and enactment of different provisions regarding “securitization” of border policing, inclusion of carrier responsibility into immigration acts, biometric passports, etc. (Uccellini 2010).

The EU and the USA have done a great deal in establishing building capacity and equipping the migration management structures in BiH, which mainly took place through their assistance programs. Today, the country operates within the three-tier migration management model.Footnote 12 This model follows the EU standards and serves as the basis for further development, such as the introduction of the fourth tier of control—international cooperation—as well as development of integrated border management practices. An improved primary legislation, which is mainly related to the 2008 Law on Movement and Stay of Aliens and Asylum, clarifies the particular roles of the implementing agencies and procedures to be followed.

However, similar to other fields, the core challenge facing Bosnia in managing both regular and irregular migration is not primarily one of legislation, it is one of capacity. The 2008–2011 BiH Migration Strategy states that despite distinct developments seen over recent years, the capacities of individual agencies and bodies still require improvement. Concepts and practices introduced with new legislation are often entirely new to BiH and as such, their implementation is weak. A much more proactive approach is assumed by new procedures and closer cooperation along similar standards across agencies. Furthermore, authors of the Migration Strategy indicate that “historically, the Ministry of Foreign Affairs (MFA) visa sections and Sector for Foreigners Affairs (SFA) had more of an administrative nature; hence their adaptation to their new roles has not been without difficulties. More police-styled and well-established agencies such as the Border Police and SIPA are better able to adapt to such concepts. However, concern exists that the visa sections of both the SFA and MFA will struggle with their roles—not because they don’t want, but simply because they do not how to. A lack of accountability within these agencies adds to the risk that bad practices could go unnoticed and/or unchallenged and practical development of the whole of migration enforcement will be undermined” (Ministry of Security of Bosnia and Herzegovina 2008).

Such a situation carries high potential for breaches of international human rights norms and standards. Moreover, political interferences seem to challenge the technical progress made so far. Unfortunately, these problems have surfaced not only in the sector of migration management but also in other issue areas, hence the concern expressed by international actors involved in projects in BiH. For instance, the European Commission reported to the EU Council and the European Parliament that “the functioning of the state-level executive and legislative bodies has continued to be negatively affected by the prevalence of ethnically oriented considerations” (European Commission 2010). Also, the EC reported that the civil service is still highly politicized and in need of professionalization, transparent and efficient recruitment procedures. “Little progress has been made in preventing political interference and limiting the role played by ethnic identity and party membership in public administration, as demonstrated during the harsh and lengthy processes to appoint new directors in a number of key institutions, including the Directorate for European Integration, Indirect Taxation Authority, Communications Regulatory Authority, etc. Little progress has also been made in modernizing procedures and in ensuring closer cooperation between the various administrations within the country” (European Commission 2009a, b). All these issues adversely affect the development of an accountability culture within these institutions.

Citizenship Review Commission

In recent history, Bosnia and Herzegovina has not been an attractive destination for foreign settlers. However, the 1992–1995 armed conflict attracted a large numbers of foreign fighters and mercenaries from various countries. Volunteers came to fight for a variety of reasons including religious or ethnic loyalties, and in some cases for financial gain. The number of the volunteers is still disputed as it has never been systematically analyzed. After the war, vast majority of these soldiers left BiH, but some decided to settle permanently. Those who decided to stay had to legalize their status in the country, as the DPA stipulated that “all forces in Bosnia and Herzegovina as of the date this Annex enters into force which are not of local origin, whether or not they are legally and militarily subordinated to the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina or Republika Srpska, shall be withdrawn together with their equipment from the territory of Bosnia and Herzegovina within thirty (30) days. Furthermore, all forces that remain on the territory of Bosnia and Herzegovina must act consistently with the territorial integrity, sovereignty and political independence of Bosnia and Herzegovina” (General Framework Agreement for Peace in Bosnia and Herzegovina 1995).

However, a significant number of these persons were allowed to stay in Bosnia and Herzegovina due to their matrimonial relations with Bosnian citizens, as well as the fact that many have come from Former Yugoslav republics.Footnote 13 Even though the last census in BiH was conducted in 1991 and there is a constant lack of reliable statistical demographic data, there were many attempts to estimate the total number of foreign soldiers who were permitted to stay in BiH after the war. According to Ms. Selimbegovic, an investigative journalist, the number totaled to 11,000, including those from ex-Yugoslav republics (Selimbegovic, article “Passport for Bare Life”, Dani Magazine 2001). Those foreigners who acquired Bosnian citizenship were never systematically scrutinized until the situation that emerged after 9/11, when naturalized citizens from Islamic countries came to the focus of attention as potential security threats. According to the estimation provided by Mr. Misic, a former Deputy Minister of Foreign Affairs of BiH and the Head of the State Anti-Terrorism Task Force, the total number of the latter varied between 1,400 and 1,800 soldiers (Azinovic, Free Europe Radio 2007).

It was only in 2005 that the State Commission for Review of Decisions on Naturalization of Foreign Citizens (CRC) was established by means of amendments to the BiH Law on Citizenship. Members of the commission included officials of the Ministry of Security, Ministry of Civil Affairs, four experts from BiH institutions, and three international members. The main task of the CRC was to review the status of all persons who acquired BiH citizenship in the period from 6 April 1992 to 1 January 2006. The CRC was initially established as a temporary body with the mandate of one year, but only after several months of its existence, it became obvious that the workload by far exceeded the capacities of this body. In 2007 the OHR prolonged its mandate for another year, as there was a possibility that due to the 2006 general elections, the state parliament may not become operational to extend the CRC mandate on time. At a later phase, the CRC has been integrated into the structures of the BiH Ministry of Civil Affairs, which, in a certain way, secured its sustainability (European Commission 2009a, b).

However, due to the latest political (ethnic) tensions in BiH, which could be arguably categorized as acute as those in the early 1990s, it is no surprise that the work of the CRC has been regularly scrutinized by local politicians who use every opportunity to reiterate the threat for their own national corpus. Additionally, the work of the CRC caused intense public debate, substantiated by the fact that the citizenship review procedure took place behind closed doors and persons involved were not present to hear their cases being discussed. Furthermore, the final decisions did not contain detailed justifications and appeal procedures were defined ambiguously, i.e., an appellant’s request for reviewing the decision did not postpone the execution. In September 2007, a commission of the European Parliament indicated that the CRC had revoked the citizenship of 613 people, mostly originating from Islamic countries, with the largest numbers having immigrated from Turkey (137), Egypt (63), Syria (49), and Algeria (37). By December 2008, the CRC had revoked the citizenship of fifty more persons, bringing the estimated total to above 660, of which 400 were individuals of Islamic origin. In spite of the fact that these persons were allowed to initiate administrative proceedings before the Court of BiH, only few of those affected initiated such proceedings. Most reasonable explanation for such low number of appeals is the fact that these do not secure postponement of removal from the country. On top of everything, the judicial system in BiH has been struggling with the problem of a huge number of unsolved cases, so these processes tend to become never-ending stories. According to the information provided by the High Judicial and Prosecutorial Council of BiH, the number of unsolved cases in Bosnian courts exceeds 1.9 million, with the trend pointing to further growth (High Judicial and Prosecutorial Council of BiH, 2006).

The following case of a so-called Algerian group, which may be directly linked with the process of securitization of migration policies in BiH after 9/11, describe not only the inefficiency of relevant actors in BiH to adequately tackle this sensitive issue, but, at the same time, it also provides additional insight into the complexity of Bosnian society and its failure to take accountability seriously.

The “Algerian Group” Case

The most prominent post-9/11 incident that drew major attention and political debate in BiH was the case of “Algerian group.” Namely, in October 2001 Bosnian authorities arrested 6 Arabs (5 Algerians and 1 Yemeni), who had worked for Islamic charity branches in BiH headquartered in Saudi Arabia, the United Arab Emirates, and the United Kingdom. Of the six arrested, five had Bosnian passports, while one had a Bosnian residence permit, as all of them had married Bosnian women and had gained legal status in BiH. They were held in Bosnian custody during a three-month investigation into US claims that the men had plotted an attack on the US and UK embassies in Bosnia and Herzegovina. The investigation however produced no evidence to justify their detention and the six men were to be released by the FBiH Supreme Court and Human Rights Chamber of the BiH Constitutional Court at the recommendation of the prosecutor. But, just hours before their release in January 2002, the six men were handed over to the US Army base in Bosnia and deported to Guantanamo Bay.

Many international institutions, governmental and nongovernmental, including bodies of the European Parliament and the Council of Europe,Footnote 14 as well as Transparency International and Human Rights Watch have concluded that the act of extradition of the Algerian Group constituted a major violation of human rights and freedoms. According to the Helsinki Committee of Bosnia and Herzegovina, the harshest violations committed at the time were the arbitrary and illegal dispossession of citizenships and extradition to a country with the death penalty and a threat of torture and other inhumane and degrading treatment (Helsinki Committee of BiH 2008). Moreover, the Committee indicated that Bosnia and Herzegovina violated the international legal instruments it had previously committed itself to respecting, including the Universal Declaration of Human Rights, the International Covenant on Civic and Political Rights, the European Convention on Human Rights and Freedoms, and the Convention on the Reduction of Statelessness.

In addition, the Bosnian government did not only fail to comply with all the above-mentioned international instruments pertaining to the case, but it also failed to assume the responsibility imposed by its own Human Rights Chamber, a judicial body established under Annex 6 of the DPA. Namely, this Chamber had the mandate to consider alleged or apparent violations of human rights as provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, and alleged or apparent discrimination arising in the enjoyment of the rights and freedoms provided for in the Convention and 15 other international agreements listed in the Appendix to Annex 6 of the DPA. Its decisions are final and binding and the respondent parties are obligated to implement them fully. The Chamber established that deportation of Bosnian citizens was illegal and they ordered the Bosnian government to use all diplomatic mechanisms to protect the human rights of deportees and secure their return to BiH (Human Rights Chamber of Bosnia and Herzegovina decisions: CH/02/8679, CH/02/8689, CH/02/9690, and CH/02/8691 issued on 11 October 2002 and CH/02/8961, CH/02/9499 issued on 4 April 2003).

As a result of these decisions, the Bosnian government assumed responsibility to address this issue and start negotiations with the US government. In April 2004 the Commission for Human Rights, Immigration, Refugees and Asylum of the BiH Parliament addressed the request to the BiH Presidency to start negotiations with the US government on repatriation of the six deportees (Commission for Human Rights, Immigration, Refugees and Asylum of the BiH Parliament, House of Representatives document No. 01/5-059-1030/04 from 21 April 2004). In June 2005, the Chairman of the Council of Ministers of BiH addressed the EU Parliament and reiterated the readiness of the Bosnian government to secure the repatriation of the six deportees. Following this, in September 2005 the BiH Parliament adopted a resolution which recommended that the Bosnian government should react immediately and start negotiations on repatriation (BiH Parliament resolution from 16 September 2005). Nevertheless, in spite of all these declarative reactions, the Bosnian government undertook only two concrete steps. The first one was the visit of an official delegation to Guantanamo Bay prison, where they met only those detainees who were still Bosnian citizens. The second one was submission of a request to the United States Attorney General to release detainees who were still Bosnian citizens. The immediate response to the latter step was an official diplomatic note sent by the US government informing the Bosnian authorities that the USA was considering the release of the detainees. In this note, American authorities also requested additional information on whether these persons represent a security threat to the USA or not. Unfortunately, the Bosnian government did not respond to this request and the detainees remained in prison until the final decision was made through a judicial proceeding in 2008 (Selma, Memorandum Order of the US District Court for the District of Columbia, 20 November 2008, civil case 04-1166(RJL). US District Judge, Richard J. Leon). By doing this, BiH became the only member of the Council of Europe, whose citizens were detained in Guantanamo Bay, which failed to successfully arrange release of at least one of the detainees. Despite the inadequate response of Bosnian authorities following almost seven years of imprisonment, five of the six detainees were released from Guantanamo Bay as a result of a decision issued by the US District Court for the District of Columbia on 20 November 2008. The sixth man, Belcacem Bensayah has been denied his petition for writ of habeas corpus.

The apathy towards the violation of detainees’ rights characterized not only Bosnian authorities, but also the nongovernment sector. Besides a few sporadic mini-protests, mainly driven by detainees’ family members, there was no significant pressure exerted towards the authorities. However, during this seven-year controversial process, detainees managed to remain in the public eye mainly due to the fact that they were quite often used as a way to obstruct the agendas of politicians who were involved in the extradition process. As a result of these political pressures, the Prosecutor’s Office of the Sarajevo Canton opened an investigation against former Chairman of the BiH Council of Ministers,Footnote 15 the deputy minister of the FBiH Ministry of Interior, and several high-ranking police officers. This two-year process was carried out without intensive media coverage. It ended on 9 April 2010 when the Prosecutors Office terminated the investigation based on lack of evidence. The decision on termination of the investigation was published and broadcast in almost all local media in BiH, but once again it failed to evoke any significant reactions from the public.

The above-mentioned 7-year long controversy reflects poorly on the status of human rights, the judicial system, NGO sector, the media, and the overall political situation; in addition, it is indicative of the inefficiency of the executive and legislative structures set up under the auspices of international community. This does not necessarily involve the responsibility of international actors, as their role was strictly limited to the process of establishing local bodies which were supposed to assume the responsibility as soon as these became operational. In such a situation, all serious and systematic consideration of the concept of accountability in the security sector may be seriously challenged as a result of the existing inconsistencies. Nonetheless, this specific case could also be looked at through a different prism, inasmuch as there were many international actors involved in this case, and their failure to abide by international standards was telling. Still, the weak position of BiH on the international scene should not justify the inefficiency of its government and its noncompliance with basic international standards.

Concluding Remarks

Clearly much more work needs to be done in order to ensure a proper balance between preserving national security and improving democratic processes to uphold human rights and freedoms. Sustainable accountability mechanisms cannot be established overnight, especially in a war-torn country such as Bosnia and Herzegovina. First and foremost, it is imperative that key domestic political actors resolve their differences and find compromise on the most important issues for the future of the country. An important step in that direction would be the adoption of policies that would support further democratization of the country, along with the implementation of international and EU standards in this regard.

The overarching principles of the rule of law cannot be adhered to by mere rule adoption. The country has to have absorption capacities to implement necessary reforms and install stable accountability mechanisms. Therefore, the existence of accountability mechanisms is not enough when there is no true commitment to abide by the rules set by them.

Factors characterizing young democracies, such as corruption, the lack of institutional knowledge and capacities, as well as ineffective civil society actors, need to be addressed. Civil society and the media also need to become more engaged in the political process in order to publically scrutinize the actions of elected officials who fail to meet the expectations of the public.