http://www.idc-europe.org/showerInformation.asp?Identificateur=45
WHAT FUTURE FOR DAYTON?
Publication day: 6/7/2009
Introduction
The Institute of Democracy and Cooperation has undertaken a mission to Bosnia,
visiting the country on 26 and 27 June 2009 as guests of the Lord Byron
Foundation for Balkan Studies. They travelled to Banja Luka, Bijeljina,
Bratunac and Srebrenica and they interviewed the Prime Minister of Republika
Srpska, Milorad Dodik.
The visit occurred shortly after a decision taken by the international High
Representative to annul a in the National Assembly of the Serb Republic in
Bosnia (Republika Srpska). The resolution had sought to repatriate powers
centralised at the federal level by earlier Decisions of the High
Representative.
This decision is only the last in a long series of decisions, taken over a
period of many years, in which successive High Representatives have overturned
the decisions of elected bodies and sacked elected bodies. These measures
highlight the often controversial role of the Office of High Representative, an
international official who enjoys the status of a Governor over what is
effectively a protectorate, and who uses seemingly undemocratic means to
prepare Bosnia-Herzegovina for EU membership.
The latest decision comes against the background of what appears to be a
concerted push by the new Obama administration in Washington to deal with
"unfinished business" in the Balkans, i.e. to put an end to the provisional
Dayton agreement by centralising Bosnia-Herzegovina.
Dayton and its aftermath
Following the end of the Bosnian civil war in 1995, a peace was famously
negotiated at the US air base in Dayton, Ohio. The peace treaty took the form
of an agreement, the General Framework Agreement which contains the
constitution of Bosnia-Herzegovina and provides for the military occupation of
the country and for the Office of High Representative. These two elements
have inevitably turned out to be more important than the constitution itself
for, as we shall see, they (especially the High Representative) override it.
This is because of Article 5 of Annex 10 of Dayton, which provides that “The
High Representative is the final authority in theatre regarding interpretation
of this Agreement on the civilian implementation of the peace settlement.” In
other words, the High Representative is sovereign in Bosnia-Herzegovina if by
“sovereign” we understand the right to make final unimpeachable decisions.
Bosnia-Herzegovina is sometimes referred to as “a protectorate” and it
certainly resembles one in various respects. Formally, however, it is not a
protectorate but a sovereign state and a member of the United Nations. The
powers of the High Representative are laid out in the Dayton agreement which
contains the constitution of the country and which was signed by
Bosnia-Herzegovina, Croatia and the Federal Republic of Yugoslavia. Of course
the Americans and to a lesser extent the Europeans had been the godfathers of
the agreement – their heads of state and government stood behind the
signatories as they signed the agreement and they signed it as witnesses. But
formally Dayton is a treaty between the regional powers representing the three
sides in the Bosnian conflict.
It is also often erroneously stated that Bosnia-Herzegovina is governed by the
United Nations but this is not so either. Very often the High Representative
is referred to as UN High Representative but he does not represent the United
Nations and nor does his office work for it. In fact, it is not clear whom he
represents at all. However, it is true that the Security Council retroactively
approves the appointment of the High Representative once he has been chosen by
the Steering Committee of the Peace Implementation Council.
The constitution provides for the division of Bosnia-Herzegovina into two
entities, the Serb Republic (Republika Srpska) and the Muslim-Croat Federation.
The initial idea was that the federal government would have power only over
Bosnia-Herzegovina’s international representation but, as we shall also see,
this key provision will inevitably undermine the autonomy of the two entities
since EU accession demands the centralisation of power in the hands of the
federal government, the subjection of the state to the terms of the
Stabilisation and Association Agreement, and of course the transfer of power to
Brussels.
For several years after the signature of the Dayton accords,
Bosnia-Herzegovina’s progress towards EU membership was supposed to be based on
its fulfilment of the terms of Dayton. “The pace of integration of BiH into
European structures will be governed by its performance in implementing its
Dayton obligations” proclaimed the Peace Implementation Council on 16 December
1998. The PIC is the informal body created immediately after Dayton was
signed, but before it was formally promulgated, and which appoints the High
Representative. This policy changed, however, in February 2002, when the High
Representative was appointed to be EU Special Representative as well. When
Paddy Ashdown became High Representative, he adopted an even more aggressive
stance than his predecessors (although they had themselves taken strong and
sometimes heavy-handed measures against Serbs and Croats alike) and he seemed
determined to overcome all obstacles to European integration.
It was perhaps as a result of this new zeal that the EU soon started to
consider that the Dayton agreement was not the necessary condition for EU
accession but instead an obstacle to it. A report submitted to the Council of
Ministers in 2003 concluded:
"(Dayton) … created a highly de-centralised state … State and Entity
constitutions provide blocking mechanisms protecting the “vital interests” of
BiH’s constituent peoples. This blocking mechanism may guarantee the rights of
each people, but may also make legislative progress more difficult and can lead
to deadlock. In terms of European integration, however, it is important that
partner countries are able to function properly; their various institutions
must produce the results expected in a modern democratic country. The
complexity of the existing Dayton order could hinder BiH performance."
The system established at Dayton has frequently been questioned both within
and without BiH. Certainly, from a perspective of European integration, it is
difficult to argue that the current system is optimal.
The fact that the High Representative is also EU Special Representative sounds
reasonable at first but is in fact highly anomalous. The High Representative
does not in fact “represent” anyone: he governs Bosnia-Herzegovina (or at least
oversees the government of the state and its component entities, intervening
where he sees fit). But as EU Special Representative, he represents the EU.
In other words, the High Representative could hold meetings with himself to
discuss whether Bosnia-Herzegovina meets the criteria for EU accession!
Finally, of course, it is important to emphasise that not a single aspect of
Dayton, including the constitution of Bosnia-Herzegovina which it contains, and
including the all-important Office of the High Representative, has ever been
submitted to a popular vote or ratified by any democratic process whatever.
Dayton was an exercise in state-building by means of an international treaty –
a state, moreover, to which a large percentage of the population never wanted
to belong and against which it fought a three-year war, and a treaty signed
under American pressure by the state concerned (Bosnia-Herzegovina) and its two
neighbours. The Bosnian Croats and the Bosnian Serbs were not invited to
Dayton: Bosnia-Herzegovina was represented by the Muslim president, Aliha
Izetbegovic. The undemocratic nature of the settlement imposed at Dayton was
emphasised by the first High Representative, Carl Bildt, when he wrote, “No-one
thought it wise to submit the constitution to any sort !
of parliamentary or other similar proceeding. It was to be a constitution by
international decree.” (Carl BILDT, Peace Journey: The Struggle for Peace in
Bosnia, London: Weidenfeld and Nicolson 1998, p. 139.)
The “Bonn powers”
The High Representative’s most important power is that outlined in Article 5 of
Annex 10 of Dayton – the right to interpret his own powers and the terms of the
treaty. This “final authority” to interpret is highly anomalous and in fact
violates every single canon of accepted procedure, especially the principle of
the separation of powers. Successive High Representatives have invoked this
Article not only to take unprecedented decisions, for instance sacking elected
officials or overruling parliaments, but also to augments their own powers.
One of the earlier High Representatives made this quite clear: “If you read
Dayton very carefully,” Carlos Westendorp said in 1997, “Annex 10 even gives me
the possibility to interpret my own authorities and powers.”
When the Peace Implementation Council met in Bonn on 9 and 10 December 1997,
shortly after this remarkable declaration by the High Representative, it
approved the decisions he had taken and was evidently going to take. Paragraph
XI.2 of the Conclusions says this.
"XI. High Representative -- The Council commends the efforts of the High
Representative and his staff in pursuing the implementation of the Peace
Agreement. It emphasises the important role of the High Representative in
ensuring the creation of conditions for a self-sustaining peace in Bosnia and
Herzegovina and his responsibility for co-ordination of the activities of the
civilian organisations and agencies in Bosnia and Herzegovina. The Council
reiterates that the Steering Board of the PIC will provide the High
Representative with political guidance on peace implementation. It will
continue to meet monthly, inviting representatives of relevant international
organisations to attend as appropriate.? The Council welcomes the High
Representative's agreement to continue reporting in accordance with Article II.
1 (f) of Annex 10 to the Peace Agreement.? The Council encourages the High
Representative to report regularly on compliance by individual municipalities
with the provisi!
ons of the Peace Agreement.
The Council welcomes the High Representative's intention to use his final
authority in theatre regarding interpretation of the Agreement on the Civilian
Implementation of the Peace Settlement in order to facilitate the resolution of
difficulties by making binding decisions, as he judges necessary, on the
following issues:
- timing, location and chairmanship of meetings of the common institutions;
- interim measures to take effect when parties are unable to reach
agreement, which will remain in force until the Presidency or Council of
Ministers has adopted a decision consistent with the Peace Agreement on the
issue concerned;
- other measures to ensure implementation of the Peace Agreement throughout
Bosnia and Herzegovina and its Entities, as well as the smooth running of the
common institutions. Such measures may include actions against persons holding
public office or officials who are absent from meetings without good cause or
who are found by the High Representative to be in violation of legal
commitments made under the Peace Agreement or the terms for its implementation."
In other words, the Bonn merely approved and welcomed what the High
Representative was doing and was going to do: it did not confer on him any new
powers. It did not do so for the simple reason that it cannot do so: The
Peace Implementation Council, which was created after Dayton was agreed, by
definition appears nowhere in Dayton itself. The PIC was created mainly on
European initiative because the Europeans resented the fact that Dayton was an
almost exclusively American creation and they wanted some influence over the
way the Agreement would be implemented.
To understand the status (or rather lack of status) of the PIC, we need to
remind ourselves about the circumstances in which it came into being. Dayton
having been initialled on 21 November 1995, the European powers convened a
meeting of the first Peace Implementation Council at Lancaster House on 8 – 9
December. The leader of the British delegation to the Dayton Peace Conference,
Dame Pauline Neville-Jones, helped set up the PIC and even she admitted,
“Everyone knew it was a phoney.” It worked “in a legal vacuum.” (Quoted in
the excellent paper by David Chandler, From Dayton to Europe, 2004.)
This means that it is highly anomalous for the High Representative to invoke
both Article 5 of Annex 10 and the so-called Bonn powers when justifying his
controversial decisions to annul the decisions of parliaments or sack
officials. Yet he does invoke both these very regularly. (For a list of
Decisions click here.). It is controversial because these are not “powers” in
the usual sense of the word. They are not specific executive competences which
have been delegated but instead enabling clauses which allow him to interpret
his own powers and which are therefore wielded without any judicial, political
or parliamentary control.
In other words, the High Representative, an office created to supervise the
transition to democracy over a period of one year, has in fact not only sucked
all democracy out of Bosnia by overruling decisions taken by legally and
democratically elected bodies, it has also sucked all legality out of the
country too since it is a fundamental principle of the rule of law (and not
just one invented by Montesquieu) that executives do not have the power to
interpret and augment their own executive powers.
This situation is set to get worse. Bosnia has now embarked on the road to EU
accession. It signed its Stabilisation and Association Agreement with the EU
on 16 July 2008 and ratified it in February 2009. This signature and this
ratification represented the culmination of a process which started in 2000
when, at the Zagreb summit in November of that year, the EU began its process
of enlargement into the “Western Balkans” including the funding known as CARDS
for Community Assistance for Reconstruction, Democratisation and Stabilisation.
Because the European Special Representative is designed to take over the
functions of the High Representative when that office is eventually closed down
(or rather re-branded) the near-totality of Bosnian politics will henceforth be
subject to the edicts of Brussels and to the perceived need to get the country
ready for EU membership.
In particular, it is inevitable that the long pressures against the existence
of the autonomous entities will continue. In 1999, the then High
Representative, Carlos Westendorp, decreed the removal of Nikola Poplasen, the
President of Republika Srpska; in 2001, his successor, Wolfgang Petritsch,
sacked the Croat member of the collective BiH presidency, Ante Jelavic, who was
also sacked as president of the leading Bosnian Croat political party, the HDZ
; and in 2005, Paddy Ashdown sacked Dragan Covic, again the Croat member of the
collective BiH presidency. These decisions are only the most prominent ones –
hundreds of politicians and public figures have been sacked in this way over
the years. (For a full list of these decisions, see the archive on the OHR web
site.)
The National Assembly resolution of 14 May 2009
The National Assembly of Republika Srpska, in its resolution of 14 May 2009,
sought to put a stop to this centralising trend. It recalled that the powers
of BiH institutions are defined by the BiH constitution contained in Annex IV
of Dayton, an international agreement to which Republika Srpska is a signatory,
and especially by Article III of that constitution which provides that all
powers not granted to the central authorities remain with the individual
entities. The National Assembly had found in an earlier study that 68 powers
had been transferred to the central government of which only 3 had been
approved by it according to Article III.5 of the BiH constitution. The
resolution complained that transfers of power decided by the High
Representative were not in comformity with democratic principles and that they
did not strengthen democratic institutions. The Assembly said that it regarded
any further such transfers by imposition to be unacceptable. The Assembly said
t!
hat any further transfers would amount to constitutional changes and that if
there were to be negotiations over a new constitutions, then past changes
should also be included in the discussion. It resolved to hold an annual
review on the impact of transfers and to tell its representative at the federal
level to give warning of any future transfer in preparation. The RS also
encouraged the Office of the High Representative to be closed and changed into
that of the EU Special Representative alone, without the power to impose
solution on BiH. The Assembly specifically called on the High Representative
to abandon the so-called “Bonn powers” and it demanded that he annul past power
transfers and restore the rights of private individuals who have been adversely
affected by them in the human and civil liberties.
Interview with Milorad Dodik
Naturally the Bosnian Serb authorities are highly dissatisfied with the OHR
Decision to annul this resolution. The web site of the National Assemlby
carries a statement saying that it is unacceptable in a European state for the
decisions of democratically elected assemblies to be overruled in this way. Mr
Dodik began by telling members of IDC that the hostile attitude of successive
High Representatives seems to remain unchanged whoever is in power in Serbia
and Republika Srpska – Milosevic, Karadzic, Tadic or himself. “Our relations
with the United States are at their lowest ebb,” he said, adding that
anti-Americanism was rising among Serbs. The Americans and the Europeans were
pursuing the same policy as they did when Alija Izetbegovic was in power. Even
the events of 9-11, “which had their roots here in Bosnia” had not changed
anything. “We have accepted Dayton but in fact we never wanted to be in
Bosnia-Herzegovina. We accepted the situation because we h!
ad no choice.” He protested that the Western countries, especially Britain,
had demanded respect for the “spirit” of Dayton rather than the letter and that
they had thus taken away powers from Republika Srpska. The worst High
Representative was Paddy Ashdown. Mr Dodik complained that under Ashdown the
practice of political prosecutions had been common – not only had people been
removed from their offices by OHR decrees, they had also been the victim of
politically motivated criminal prosecutions. He said that three members of the
BiH presidency had been subject to such investigations before being released –
Ante Jelavic, Dragan Cavic and Mirko Sarovic: this proved that the prosecutions
were political because as soon as there is an indictment, one is immediately
removed from office. The prosecutors, moreover, are foreigners who do not work
for the state of Bosnia-Herzegovina and who do not respect any proper judicial
standards in their work. Mr Dodik said tha!
t both Croats and Serbs in Bosnia were against such centralisa!
tion but
it was being driven forward, especially by the US embassy in BiH.
He insisted that Republika Srpska and Bosnia-Herzegovina generally are stable
and have no serious problems. The country is prosperous and there are high
levels of employment. (IDC members were able to confirm that Republika Srpska
does indeed seem very prosperous, strikingly more so than Serbia itself.) “Our
problems start,” Mr Dodik said, “when we step outside Republika Srpska and face
the international community.” He said that the Bosnian Serbs and the Bosnian
Croats had agreed to work together and to adopt a common approach. (Mr Dodik
is indeed very popular among Bosnian Croats and was voted Man of the Year in
2006 by Vecernji List in Mostar. ) He said, “The destiny of the Croats in
Bosnia has been a very sad one. They were forced into a federation with the
Muslims but they are always outvoted.” Mr Dodik said that ultimately the best
solution for Bosnia would be for its entities to secede but of course this
could happen only through negotiation. “Onl!
y an agreed divorce is possible. This would be preferable to current long
process of attrition. But I know that there is no support for this in the
wider world.” Otherwise a confederal solution should be sought. However,
currently the state was moving in the opposite direction and 80% of powers were
imposed from on high. Dodik concluded by saying that the Americans were arming
their enemies (the Muslims) and that the only question was when Europe would
wake up to the problem, an indication of the gravity of which was given when
there were riots across the largely Muslim suburbs of France in 2005.
Conclusion
The Dayton settlement was imposed by the international community on the warring
parties on Bosnia-Herzegovina after three years of fruitless attempts at
mediation. (Indeed, there are considerable grounds for saying that foreign
intervention made the situation worse.) Croats and Serbs alike would have
preferred not to belong to Bosnia-Herzegovina at all but they accepted the deal
as preferable to continued war. They did so on the basis that their autonomy
would be preserved, and in the case of both ethnic groups this aspiration - and
the persistent refusal of the Office of the High Representative to meet it -
has led to tension between the OHR and these two groups for a decade. It is
disappointing to see the new High Representative continuing with the worst
practices of some of his predecessors, and it is certainly not compatible with
the best principles of democracy and the rule of law for the decisions of
elected bodies to be overruled by unelected ones. A far better o!
utcome would be for the international community to think about ways of
devolving power to all three ethnic groups in Bosnia-Herzegovina, and even
perhaps of ways by which a "velvet divorce" might be achieved along
Czecho-Slovak lines.
The Institute of Democracy and Cooperation is grateful to the Lord Byron
Foundation for Balkan Studies for its kind invitation to Bosnia-Herzegovina,
and for arranging such interesting and high-level meetings.
Serbian News Network - SNN
[email protected]
http://www.antic.org/
