The view from Mount Olympus: “We cannot err”
In 2003, a growing number of police officers denied certification turned to Bosnia's courts in the hope of clearing their names and recovering their jobs. It appears that the courts have dealt with at least 262 cases. Initially, a number of first-instance courts declared their dismissals from work unlawful, as Bosnian law did not list IPTF decisions among the reasons that justified the termination of employment contracts. Bosnian law also confirmed their right of access to a court.
These rulings alarmed the international community's High Representative in Bosnia, Paddy Ashdown, who himself was vested with the powers to dismiss obstructive Bosnian officials and to impose laws. He wrote to Jean-Marie Guehenno, UN Under-Secretary-General for Peacekeeping Operations. What followed was an exchange of letters during the following two years.
"The Courts are ignoring or misinterpreting the legal force of the UN decisions and challenging the entire re-structuring process conducted by the United Nations from 1996 to 2002. […] We have made and continue to make clear that decisions issued by your Mission on certification/de-certification cannot now be re-opened either by my office, by EUPM or any other organization. We have now reached the stage, however, where we need your rapid intervention in this matter."
"I can confirm that we fully endorse the comprehensive process of police certification. […] I am convinced that the process of certification was both exhaustive and sound. […] I should also stress that decisions by the Commissioner of the IPTF, in relation to police certification, remain final and binding."
"Attempts to reinstate those individuals deemed ineligible for certification threaten the basis for the rule of law in Bosnia and Herzegovina. […] I would therefore be grateful if you could take the necessary steps to set aside the judgements challenging the validity of the certification process and to ensure that no similar decisions are taken in the future."
"I understand that the issue of certification cases where errors of law or errors of fact might have occurred, was discussed, and I welcome the fact that the UN has agreed that such cases should be reviewed and corrected if necessary. […] But I was most concerned to hear that the representative of the UN Office of the Legal Counsel had indicated during the meeting that the laws of Bosnia & Herzegovina were inapplicable to the certification process. […] Considering that […] the adoption of such legislation should have been discussed with [the] authorities prior to the issuance of certification decisions, it is clear to me that the United Nations should, in addition to its commitment to review problematic cases, provide guidance to the relevant authorities about how to tackle this problem."
"I fully share your views on the political significance of local challenges to the outcomes of police certification. […] I believe that the priority now should be given to identify and implement a legally sound course of action."
"You indicated that the UNSC [UN Security Council] was considering a Presidential Statement […] reminding the BiH authorities of their international obligations and directing them to bring their laws into line with these obligations without delay. […] There is also a pressing and urgent need for a review mechanism for cases where factual or legal errors might have occurred.
"Our legal experts advise me that there is no one at present in BiH with the authority to review these UN decisions. Neither the OHR nor EUPM has either the mandate or the resources to review UN decisions today. […] Leaving them to the BiH authorities would almost certainly lead to decisions whose effects would be to roll back the UN's achievements in police reform."
"We cannot comment on allegations that certain decisions of the IPTF Commissioner not to certify police officers were made in error.
"Should [a review of IPTF decisions] be considered necessary [by the Security Council], we feel that any review should be carried out by EUPM […], your own office or some combination of the two. […] As the final authority in BiH in the area of civilian implementation of the Peace Agreement, we believe that your mandate would authorize you to discharge such a role."[…] We share your reluctance to entrust such a process to the local authorities, particularly given their repeated failure to act thus far."
"The Security Council […] fully endorses this process. The comprehensive and rigorous vetting procedure was designed to create a police force comprised entirely of personnel meeting internationally recognized standards of personal integrity and professional performance. […] The Security Council expresses concern at the failure of the competent authorities in Bosnia and Herzegovina to take due steps to implement decisions to deny certification. The Council notes that this failure has already led to several challenges before the courts in Bosnia and Herzegovina. […]
"The Security Council calls upon the Bosnia and Herzegovina authorities to ensure, including through the adoption or amendment of domestic legislation, that all IPTF certification decisions are fully and effectively implemented and that the employment of persons who were denied certification by the IPTF be terminated, and that such persons will be precluded from employment, either now or in the future, in any position within any law enforcement agency in Bosnia and Herzegovina."
"It now appears that the DPKO is now [sic] seeking [to] invoke the statement of the Security Council in order to continue to refuse to accept that some of the decisions made were erroneous, did not allow for appeal, or simply were not communicated to the individuals involved. This would place the DPKO in breach of international and national law. […] There must be some speculation that the Presidential Statement was made without the members being sufficiently appraised of all the facts pertaining to the situation."
"The UN representatives acknowledged that some cases were problematic;
"The UN representatives accepted that a review process was possible, but that such a review would need to be authorised by the UN Security Council;
"The UN representatives acknowledged that some minor technical procedural deficiencies may be corrected by the UN outside the ambit of a review mechanism. […]
"It was agreed that questions related to which organisation could potentially conduct a review and/or which organisation could financially support such a review would not be discussed. It was stressed that OHR could participate in such a review provided that it was duly authorised to do so by the Security Council and provided that it was given appropriate resources. […]
"The capacity of the UN to retrieve information within its archive appears to be rather limited. Difficulties to access information may be an obstacle to a potential review."
"The discussions between your representatives and my office constitute a step in the right direction, especially since the existence of flawed decisions has now been acknowledged. This is a major step forward and opens the way to the review process."
"Unfortunately, both your letter and the summary report do not accurately reflect the results of the discussions that took place between the representatives of the United Nations and your Office. Referring to those discussions, your letter states that 'the existence of flawed decisions has now been acknowledged.' The clear implication is that representatives of the United Nations Secretariat acknowledged that certain decisions of the IPTF Commissioner were 'flawed'. This is incorrect. We are aware of allegations to this effect, which have been communicated to us by your Office."
"The United Nations Secretariat does not believe that such a review is warranted, nor does the Security Council envisage such a procedure, as is clear from the Presidential Statement of 25 June 2004."
"Owing to efforts by the Office of the High Representative and EUPM, Bosnia and Herzegovina legislation now stipulates that all police officers denied certification (or whose provisional authorization was withdrawn) must be dismissed, thus providing a solid legal basis for decisions by both the local authorities and the international community."
"The Council made a final pronouncement on the issue in its Presidential Statement of June 2004. […] We are, of course, ready to assist any review or other mechanism which the Council would authorize, including by making files available on a case-by-case basis and within the usual restrictions."