1 Pursuant to the Dayton Peace Agreement, Bosnia and Herzegovina was officially divided into two Entities. The resolution of the Brcko area problem gave Bosnia a District as well. General Framework Agreement for Peace in Bosnia and Herzegovina, Dec. 14,1995, 35ILM 75 (1996) [hereinafter DPA]. For the DPA and other documentation on Brcko, see the Web site of the Office of the High Representative, <http://www.ohr.int.>

2 Richard Holbrooke,To End a War 272-73,296,305,308 (Modern Library 1999) (1998); see also CARLBlLDT, PEACE JOURNEY: THE STRUGGLE FOR PEACE IN BOSNIA 6-7,52,141,148,150,152,156-58, 323-31 (1998).

3 HOLBROOKE, supra note 2, at 308; BlLDT, supra note 2, at 156.

4 Arbitration for the Brcko Area (Fed. Bosn. & Herz. v. Rep. Srpska), Final Award, paras. 9,11,61 (1999), 38 ILM 534 (1999) [hereinafter Final Award]. The Tribunal made it clear that the delegation of the power of governance “within the pre-war Brcko Opstina” by the Entities was directly to the District government, i.e., that it was not a twostep process—a cession of power by each Entity to the government of Bosnia and Herzegovina and then another cession of power by the latter to the District government. Article 111(2) (c) of the Constitution of Bosnia and Herzegovina contemplates that each Entity will have the authority to establish appropriate agencies, and Article 111(3) (b) implicitly allows each Entity to delegate certain powers of governance to “subdivisions” of the Entity. Though Article III (5) (a) “clearly” forbids either Entity to delegate any powers of governance to any institution other than the state, since all of the powers of governance delegated by the Entities will be exercised within their respective territory, the transfer of their powers of governance over the Brcko area is constitutionally permissible. See Final Award, supra, para. 58. As the parties to the DPA insisted on creating relatively autonomous Entities within a state with limited powers, it is understandable that the Tribunal directed the Entities to delegate their powers over the Brčko area directly to the District, rather than to the state.

Consequendy, neither Entity has gained or lost the Brčko area. Rather, it is joindy owned but independently self-governed. Moreover, because of the structure of government mandated by the Final Award, the Brčko District is not an Entity. This can be clearly seen by the District's lack of powers, which in fact are integral to and distinctly characteristic of the Entities. This lack is most pronounced by the absence of Briko District citizenship; for this reason, its residents are citizens of either the RS or the Federation.

5 The term “model” is not used here to mean “blueprint” but, rather, is “a simplified description of what the reform process should achieve and . . . is used to assist those in charge of designing and implementing the reform process.” Julio Faundez, Legal Reform in Developing and Transition Countries—Making Haste Slowly, LAW, Soc. JUST. & GLOBAL DEV., No. 1, 2000, 1.2, at <http://elj.warwick.ac.uk.”

6 Commenting on the Brčko Law Revision Commission as a model for future reforms, the Appropriations Committee of the U.S. House of Representatives stated: “In particular, the Committee believes that the work of the Law Revision Commission to modify existing laws to produce a uniform and fair system of laws throughout the Brcko District should be seen as a model for making similar reforms in the broader region.” H.R. REP. No. 107-142, at 49 (2001). Similarly, the United States Institute of Peace opined that“ [t] he work of the Brcko Law Revision Commission in reconciling laws in the two entities should be used as the basis for a comparable effort at the central government level.” U.S. INSTITUTE OF PEACE, BOSNIA&S NEXT FIVE YEARS: DAYTON AND BEYOND 10, item g (2000). See also INTERNATIONAL CRISIS GROUP [ICG], COURTING DISASTER: THE MISRULE OF LAW IN BOSNIA & HERZEGOVINA 54 (2002), available at <http://www.ind-crisis-group.org, advising that

7 JUSUF KADRIC, BRČKO: GENOCIDE AND TESTIMONY 55-65 (Saba Risaluddin & Hasan Rončevićtrans., 1999); NORMAN M. NAIMARK, FIRES OF HATRED: ETHNIC CLEANSING IN TWENTIETH-CENTURY EUROPE 166-67, 175 (2001); see also HELSINKI WATCH, WAR CRIMES IN BOSNIA-HERZEGOVINA 69-70, 94-99, 132-33, 137-39 (1992).

8 See generally KADRIĆ, supra note 7.

9 ICG, BRCKO: WHAT BOSNIA COULD BE 2 (1998), available at <http://www.intl-crisis-group.org.

10 Id.

11 Id.; see also Conflict in the Former Yugoslavia: An Encyclopedia 31-32 (John B. Allcock, Marko Milivojevicć, & John J. Hortoneds., 1998); Ante Čuvalo, Historical Dictionary of Bosnia and Herzegovina 81 (1997). 12 William Farrand, Remarks, 95 ASIL PROC. 228, 229 (2001).

12 William Farrand, Remarks, 95 ASIL PROC. 228, 229 (2001).

13 DPA, Annex 2, Art. V, para. 1. The “parties” are defined in the introductory paragraph of Annex 2 as the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina, and the Republika Srpska.

14 Id., para. 5.

15 Arbitration for the Brcko Area (Rep. Srpska v. Fed. Bosn. & Herz.), Award, para. 104, 36 ILM 396 (1997), reprinted in UN Doc. S/1997/126 [hereinafter 1997 Award].

16 Under the DPA, the parties agreed to the

DPA, supra note 1, Annex 10, Art. I, para. 2; see also Conclusions of the Peace Implementation Conference Held at Lancaster House London, paras. 17—19 (Dec. 8,1995),available at <http://www.ohr.int/pic/archive.asp?sa=on> [hereinafter London Conclusions].

17 1997 Award, supra note 15, para. 104(1) (A), (B).

18 Id.

19 The Steering Board of the Peace Implementation Council, composed of representatives of Canada, France, Germany, Italy, Japan, Russia, the United Kingdom, the United States, the presidency of the European Union, the European Commission, and the Organization of the Islamic Conference, was established under the chairmanship of the high representative to “give him political guidance on peace implementation,” among other things. London Conclusions, supra note 16, para. 21.

20 Chairman's Conclusions, Brcko Implementation Conference (Mar. 7,1997), availableat <http://www.ohr.int/pic/archive.asp?sa=on.>

21 Id., para. 1.

22 Arbitration for the Brcko Area (Fed. Bosn. & Herz. v. Rep. Srpska), Supplemental Award, para. 24 (1998), available at OHR Web site, supra note 1.

23 Id., para. 24. For the revised annex, see infra note 28.

24 Final Award, supra note 4, annex, introductory para.

25 At no point in the Final Award is the high representative given any directive power with respect to the governance of the District, whereas the Supervisor is in charge of all such matters. Indeed, though the Supervisor also bears the title of deputy high representative and in that sense is operating under the high representative's authority, the Final Award undisputedly contemplates mutually agreed coordination between the two offices on matters of common interests, requiring “consultations” in certain instances but not authorizing the high representative to dictate District policy to the Supervisor. However, since the cooperation of the Entities is vital to the implementation of the Final Award and the OHR has authority over the Entities, whereas the Supervisor does not, it is axiomatic that the Supervisor must work in close coordination with OHR. The Tribunal “strongly recommends that the High Representative and the Supervisor work together to eliminate” certain practices, Final Award, supra note 4, para. 47, but it is the Supervisor who is entrusted with the discretion to issue remedial orders in the event of noncompliance by the Entities, id., paras. 13,66. Though Article V of Annex 10 to the DPA, supra note 1, gives the high representative “the final authority” to interpret the DPA, Article V of Annex 2 gives specific powers to the Tribunal to resolve the status of the Brcko area. Consequently, since the Tribunal unequivocally entrusted the Supervisor with the power of interpretation and execution of the Final Award, there is no constructive ambiguity as to who has the final authority in the District. As the parties to the DPA intended, Article V of Annex 2 trumps Article V of Annex 10.

26 “When the Supervisor concludes that the IEBL has ceased to have any legal significance within the District, it will cease to exist within the District.” Final Award, supra note 4, para. 39; see also id., para. 11.

27 Id., paras. 11,39.

28 Id., annex, 6th para.; Arbitration for the Brcko Area (Fed. Bosn. & Herz. v. Rep. Srpska), Annex to Final Award, para. 5 (rev. Aug. 18, 1999), av ailable at OHR Web site, supra note 1 [hereinafter Revised Annex].

29 The BLRC was funded exclusively by a U.S. grant totaling one million dollars.

30 Roberts B. Owen, presiding arbitrator.

31 One of the three basic propositions identified by Supervisor Farrand as essential to maintaining and building upon the “fragile peace in Brcko” relates to the expeditious instillation of respect for the rule of law. As he noted in 2001:

Farrand, supra note 12, at 228.

Similarly, commenting on the reconstruction of thejudicial systems in Kosovo and East Timor, Judge Hansjö;rg Strohmeyer aptly noted:

Hansjörg Strohmeyer, Collapse and Reconstruction of a Judicial System: The United Nations Missions in Kosovo and East Timor, 95 AJIL 46, 60 (2001).

32 Final Award, supra note 4, para. 39.

33 Id., Revised Annex, supra note 28, para. 5.

34 The Steering Board of the Peace Implementation Council issued a communiqué in Brussels on March 20, 2001, stating:

The reforms introduced by the BLRC have effectively fulfilled the Steering Board's recommendations. OHR, Peace Implementation Council, Communique by the PIC Steering Board (Mar. 20, 2001), available at <http://www.ohr.int/pic/archive.asp?sa=on.>

35 For the step-by-step drafting process used by the BLRC, see Brcko Law Revision Commission, Chairman's Final Report 15—16 (Dec. 31, 2001) [hereinafter Final Report] (on file with author).

36 The chairman, representing the BLRC, as the proposer of the draft law, would explain the draft and give his opinion on proposed amendments submitted by Assembly councillors, the government, and others, but he had no voting or veto power before the Legislative Committee.

37 For the importance of ownership and homegrown solutions in legal reform, see generally supra note 4.

38 The high representative established the Independentjudicial Commission on March 14, 2001, to promote the rule of law and judicial reform throughout Bosnia and Herzegovina. On November 1, the commission established afield office in the District, thus continuing the BLRC's implementation efforts. See infra part VI, “The Judicial Branch.”

39 Final Award, supra note 4, para. 38.

40 Id., para. 36.

41 Some of the major innovations contained in the Statute are mandatory legal representation for indigent i ndividuals charged with crimes in the District, and limited legal representation for residents of the District in civil matters; mandatory financial disclosure for public officials, to be published in the District's Official Gazette; limited, rather than general, immunity for councillors and members of the judiciary; the grant of jurisdiction to the District Basic Court to decide whether any provisions of District law are either consistent or inconsistent with controlling provisions of the Constitution and laws of Bosnia and Herzegovina, and the District Statute; and establishment of a District Revenue Agency to act as a comptroller of the District Budget, and to ensure that no expenditures are made without the Assembly's approval.

42 Article 1(2) of the Statute reads as follows: “The District derives its powers of local self-government by virtue of each Entity having delegated all of its powers of governance as previously exercised by the two Entities and the three municipal governments within the pre-war Opstina, as defined in Article 5, to the District Government.” Statute of the Brčko District of Bosnia and Herzegovina, Dec. 7,1999, Art. 1 (2), 39 ILM 879 (2000) [hereinafter Statute]. To ensure that the intent of the Final Award is not violated by the OHR, the international community, or the Entities, this article is not subject to amendment. See id., Art. 1(5).

43 Id., Art. 41.

44 Judicial review refers to the courts’ authority to review actions of other branches, including the power to invalidate legislation and executive actions as unconstitutional. Article 41 of the Statute grants the District courts jurisdiction to decide whether any provisions of District laws are consistent with the Constitution of Bosnia and Herzegovina or the Statute.

45 Statute, supra note 42, Arts. 46-57.

46 Though the mayor appoints the chief and deputy chiefs of police, the District Police is not a government department. A separate law governs its functions. See id., Art. 60.

47 The reasoning behind the mandatory dismissal of all heads of departments upon the dismissal or resignation of the mayor was to allow an incoming mayor to choose his own heads of departments.

48 Within the District, freedom of information is respected by requiring District officials to ensure free, timely, and accurate public access to the District's activities, public documents, decisions, and official meetings. Statute, supra note 42, Art. 18(1), (2).

49 Revised Annex, supra note 28, para. 8.

50 Law on District Revenue Agency, Art. 5(1), quoted in Final Report, supra note 35, at 28.

51 Revised Annex, supra note 28, para. 8.

52 Similarly, the ICG concluded, “Bosnia requires uniform, comprehensive reform of its various judicial and legal systems….” It further recommended that the reforms

ICG, supra note 6, at ii.

53 Revised Annex, supra note 28, para. 4 (providing that “the District Statute shall provide for the establishment of ajudicial Commission, which shall have responsibility for the appointment, tenure, and dismissal of judges and prosecutors”); see also Statute, supra note 42, Art. 64(1) (providing that “[a] n independent Judicial Commission shall be established by law with responsibility for appointment and dismissal of District Judges and Prosecutors”).

54 Through the Law on Judicial Commission, the Law on Budget, and the Law on the District Revenue Agency, the District is in full compliance with a recent opinion by the Consultative Council of European Judges (CCJE). CCJE, Opinion No. 2 (2001), On the Funding and Management of Courts with Reference to the Efficiency of the Judiciary and to Article 6 of the European Convention on Human Rights (Nov. 23,2001), available at <http://www.coe.int/T/E/Legal_Affairs/Legal_co-operation/Legal_professionals/Judges/>.

55 The BLRC was of the opinion that in order to instill confidence in the judiciary, thejudicial Commission should either hold public disciplinary hearings, or in the alternative, include members of the community to inject transparency into the process and act as watchdogs to ensure accountability. Since many of the complaints often prove to be frivolous or false, holding public hearings could reflect negatively on those against whom complaints were filed. Consequently, the BLRC opted to have District residents be members of the Judicial Commission and to hold disciplinary hearings in camera.

56 In drafting the Statute, the requirement for an “ethnic quota” or “ethnic formula” was deliberately left out. Instead, a less rigid standard was inserted, namely, to “reflect the composition of the population.” Statute, supra note 42, Art 48 (1).

57 These powers were vested in the Supervisor pursuant to the Final Award, supra note 4, paras. 10, 36; Revised Annex, supra note 28, para 4.

58 Similar reforms are being suggested for French criminal procedure. The elimination of investigatingjudges, who are perceived to be too powerful while often lacking objectivity and balance, particularly in cases involving political or influential individuals, was recently advocated by Jean-FranÇois Burgelin, the prosecutor general of the French Supreme Court, whose views were described as follows:

Changes Afoot? Economist, Nov. 24, 2001, at 49, 49

59 The International Criminal Tribunal for the Former Yugoslavia (ICTY) was established in 1993. The Rules of Procedure were drafted by eleven internationaljurists from a variety of legal traditions appointed by the United Nations, and with the assistance of the Office of Legal Affairs of the UN Secretariat. Proposals made by various governments and nongovernmental organizations were also considered. ICTY, First Annual Report, 1994 ICTY Y.B. 90, para. 33, reprinted in UN Doc. A/49/342-S/1994/1007 (1994).

60 As determined by the Judicial Commission, the Agency for Legal Aid is expected to handle alimony lawsuits (children and spouses), determinations of fatherhood, disturbance of possession of property, labor lawsuits related to employment procedure, disputes in connection with property acquired in marriage, and other civil matters.

61 Revised Annex, supra note 28, para. 6.

62 Statute, supra note 42, Arts. 58-61.

63 Rules of Procedure of die Assembly of the Brcko District of Bosnia and Herzegovina, Art. 39, Off. Gaz. No. 1/00, Apr. 27, 2000.

64 Book of Rules on Disciplinary and Material Accountability of Employees of die Police of the Brcko District, Art. 16, Off. Gaz. No. 6/01, May 17,2001. A recent amendment to the Law on Police was proposed requiring these regulations to be forwarded to the Assembly for review and approval. Though regulations are not adopted by die Assembly, it was determined that regulations regarding police disciplinary proceedings are of such importance that Assembly approval should be obtained.

65 Final Award, supra note 4, para. 57.

66 Farrand, supra note 12, at 228.

67 For the sake of simplicity, the term “ethnicȁ is used herein to refer not only to the three recognized constituent peoples, but also to the Roma, Hungarian, and Jewish residents of the District.

68 Revised Annex, supra note 28, para. 11.

69 The public discussions revealed the widely held belief that with the elimination of the Serbo-Croatian language, the Bosnian (spoken by the Bosniacs), Croatian, and Serbian languages were between 95 and 97% identical; but with each passing year, the languages are becoming more and more distinct.

70 Article 2(1) of the Law on Education in Primary and Secondary Schools of the Brcko District of Bosnia and Herzegovina, July 5, 2001, provides: “Primary and secondary education, as an activity of special social interest for the District, shall be uniform, and the institutions established by the District, providing such education, shall reflect the multiethnic composition of the District and its multiethnicity in the program and contents of its work.”

71 Id., Article 4(4) provides: “Posting of any national, religious or other symbols is prohibited in any school founded in whole or in part by the District, except symbols determined by the District Statute.”

72 Id., Article 5(4) provides: “The curriculum shall be based on the principles of contemporary science and practice, democratic multiethnic society and experiences of the highly developed and modern educational systems in the world.” See also Article 33, and others.

73 Id., Article 9 provides: “The Bosnian, Croatian and Serbian languages, and the Latin and Cyrillic alphabets shall be used in equal terms in realization of curricula and facultative activities in primary and secondary schools in the District.”

74 Statute, supra note 42, Art. 7.

75 As a result of the public hearings, and in an attempt to clarify the usage of all three languages in the classroom, the BLRC proposed, to the dissatisfaction of some councillors, the following additional text as paragraph 2 to Article 9 of the law on education:

This proposal was not adopted.

76 This method proved highly successful in drafting the law for refugees and displaced persons to reclaim their property lost during the war.

77 For a brilliant illustration of the importance of the registration of land and property ownership rights as a prerequisite to economic development, see generally HERNANDO DE SOTO, THE MYSTERY OF CAPITAL: WHY CAPITALISM TRIUMPHS IN THE WEST AND FAILS EVERYWHERE ELSE (2000).

78 The two types were (1) technologically outdated cadastre records containing data on size, location, and shape of land plots and structures thereon, which also contained information on real property possessors; and (2) land book records containing data on real property owners that, according to some estimates, were approximately 20% correct.

79 Overall, the BLRC drafted a total of over forty laws, as well as numerous bylaws and regulations relevant to these laws, and oversaw the establishment of a new judiciary, court administration reform, and the implementation of the laws dealing with the judiciary.

80 For an unvarnished assessment of the existing state of affairs of the international community's reform efforts in Bosnia and Herzegovina, see generally ICG, BOSNIA: RESHAPING THE INTERNATIONAL MACHINERY (2001), available a <http://www.intl-crisis-group.org>, in which the ICG concludes that the international community (including the OHR) lacks overall vision, effective structures, leadership, and coordination, and its undertakings suffer from duplication, noncooperation, and personality and turf wars.

81 As noted by the ICG:

ICG, Supra note 6, at 55.

82 Following many discussions in Bosnia, Washington, and London, the Democratization Policy Institute (DPI) sought to identify measures that the high representative could undertake to tip the balance in Bosnia toward a future of democracy, prosperity, and European integration. One of the measures proposed by the DPI is:

DPI, AN AGENDA FOR BOSNIA'S NEXT HIGH REPRESENTATIVE 20 (2002) (on file with author).