The Prohibition of Retroactive Law and Other Safeguards when Conducting Institutional Reform: The Right to Non-Recurrence in Bosnia and Herzegovina
The Prohibition of Retroactive Law and Other Safeguards when Conducting Institutional Reform: The Right to Non-Recurrence in Bosnia and Herzegovina

Summary/Abstract: This article will review the potential conflicts between the principle of the prohibition of retroactive law and the transitional justice mechanism of vetting and lustration, and debate the best and safest route to restore the integrity of and the faith in public offices. The prohibition of retroactive law is the guiding principle behind the human right of nullum crimen/poena sine lege, the protection against punishment for something that was not a crime at the time it was committed. Vetting and lustration mechanisms are not the foremost candidates to come into conflict with this right, since the right cannot be utilised unless there are proceedings before a criminal court. The principle of universal jurisdiction means that the gravest crimes and human rights abuses are exempt from the principle of nullum crimen sine lege, because they are illegal under international law even if there is no national law. This leaves us in a situation where the principle is applicable neither when judging the gravest crimes, nor when administrative justice is employed. Lustration resulting in barring from a particular profession can, however, be an intensive interference with an individual’s daily life and access to the job market. Because of this intensity, the UN has issued four guidelines for conducting fair and efficient institutional reform. This article will touch upon the philosophical, practical and legal background for the prohibition of retroactive law in relation to the benefits of lustration, and conduct a discussion between the two concerns. Lustration mechanisms must be conducted in a fair manner, not just because it is the right of the accused, but for security reasons, and because lustration is conducted in part to restore faith in public institutions. The case of Bosnia and Herzegovina (BiH)’s police, and judicial reform will be utilised as an example of vetting and lustration mechanisms, its benefits and pitfalls.

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