Before the disintegration of the former Yugoslavia in 1991, Bosnia and Herzegovina (“BiH”) employed a coherent, civil law approach to criminal justice. After internecine warfare engulfed the country in the 1990s, Bosnian courts routinely violated individuals’ rights. In response, the Office of the High Representative (“OHR”) imposed a new, more adversarial criminal procedure code on the country in 2003. This code closely resembled the mixed common and civil law procedures of the International Criminal Tribunal for the Former Yugoslavia. Nevertheless, it was inconsistent with BiH’s civil law tradition and its common law-oriented procedures bewildered local legal professionals, defendants, and victims.
This Article considers OHR’s actions in BiH in conjunction with “organic minimalism,” a theoretical approach to post-war legal reconstruction that advises rigorous study of a legal system’s internal structure prior to introducing reform. This Article argues that OHR’s sweeping criminal procedure reforms were closer to “extrinsic maximalism” than organic minimalism because they marked a seismic shift away from BiH’s legal traditions. It contends that if OHR had practiced organic minimalism, Bosnians would have more readily adopted its code and defendants’ fair trial rights would have been more secure. Despite OHR’s mistakes, all is not lost, because the current situation suggests that Bosnians will ultimately accept their new criminal procedure code over time. To enhance the code’s reception, this Article offers seven proposed solutions, including educational reform, amendments to the code, judicial guidelines, and the creation of a Supreme Court of BiH.
- International criminal law,
- comparative criminal procedure,
- rule of law,
- international development
Available at: http://works.bepress.com/christopher_denicola/1/