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Theory of dediscoursification and implementation of Dayton peace as continuation of the state of war

Theory of dediscoursification and implementation of Dayton peace as continuation of the state of war

Theory of dediscoursification and implementation of Dayton peace  as continuation of the state of war
November 04
16:22 2014

Author: Dr Dražen PEHAR 

 

Dediscoursification

Over the last few years I have developed a theory of dediscoursification as one of the major causes of armed conflict.[1] Key premise of the theory may be put in the words by a hero from a Canadian writer, Margaret Atwood’s novel: “war is what happens when language fails.” Theory of dediscoursification explains in detail what exactly happens when language fails, that is, when some political actors gradually come to realization that, to their shared problems or political conflict, they are unlikely to find a joint solution in the medium of language, or that their ens loquens is likely to be replaced with ens belli. The theory aims to elucidate the ways in which something tragically harmful is happening with language in the condition when some individuals use it in an insufficiently rational and considerate, and most importantly in an insufficiently moral, way.

Hence, when you have at least two actors who hold prima facie irreconcilable views of some key issues they consider of critical importance to themselves and their relationship, the two may try to bridge the difference through negotiations, i.e. through the use of language in accordance with some shared, commonly accepted standards. However, if the two do not use language in accordance with such standards, the phenomenon of dediscoursification will take place, which means that they will cease to believe in the possibility of coming to an agreement within the medium of language, by negotiating. A special kind of silence will descend over such actors, one that indicates not only that the two have no further word to say to one another, but also that one actor started viewing another as a fundamentally immoral user of language: as one who uses it in such a way that the use demonstrates his or her non-sociability and general impenetrability to the negotiating effort. Typically, one actor starts characterizing another as a liar, or as a speaker generally disinclined to offer sound and initially plausible argument, or as incoherent, or often also as a promise-breaker. Whenever such a characterization is given, we know nearly for certain that the users of language will be, at worst, inclined to jump at each other’s throats, or at best, take a significant and enduring distance from each other. In other words, even in the best case scenario, after dediscoursificiation takes its toll in a social relationship, the relationship ceases to be, that is, the actors are no longer capable of forming a coherent whole, an association.

One of the key theses of the theory of dediscoursification reads as follows: such arriving at a conclusion concerning a discourse of one’s at least potential partner can be, and often is, fully based on rational grounds. In other words, one who characterizes another actor as a dediscoursifier, as a party who uses language in the way that ‘annihilates’ language itself, which opens the door to the use of non-discursive means as a tool of political conflict resolution, can be fully right in two senses: the dediscoursifier violates some intersubjectively valid standards of the use of discourse, and, secondly, his or her violation reaches the point at which one who qualifies him or her as a dediscoursifier cannot escape his own conclusion despite his best intentions. I deem this to be an acceptable idea simply due to the fact that the description of a speaker as a liar, or as a promise-breaker, can be both rational and well-founded, and can also be intersubjetively valid in the sense that all rational users of language are likely to agree with such a description. However, we should also bear in mind that dediscoursification is in some societies generated as a cultural pattern; it is promoted through some stereotypes ‘triggered’ in some critical moments: for instance, in some societies one who aims to resolve political problems or conflicts by negotiating is valued less than those who respond to the fact of conflict by some violent response: as, for example, those who dare to fight physically for ‘the right’ that they claim.[2] I will here put such kind of propagation of dediscoursification aside – I think it is much less interesting than the case in which dediscoursification takes place through a series of experiences with an actual partner to an actual communicative process.

Hence, for a start, we should memorize that dediscoursification is a process triggered by some violations of some discursive values that, within a society, have the status of both discursive and moral values: for instance, truth, rational and coherent argumentation, and fulfillment of promise, without which language obviously would not make sense nor serve as a key means of the securing of cooperation within a group.[3] Implementation of such values reminds us of the fact that language is indeed a foundational, or Ur-, institution to any community, and that all other institutions depend on this basic one. There is no way for a functional institution to be staffed by liars or by those who often utter contradictions or by promise-breakers. The institutions that are so staffed disintegrate rapidly. The violation of discursive values as also moral ones lead unavoidably to the conclusion on principled non-sociability of some actors, which then leads to the conclusion that one is unable to arrive in partnership with such actors at an agreement concerning some issues that are of vital importance to a political conflict; this is, as the theory points out, a truly grave and dangerous situation: the other is taken as somebody over which we cannot exert a verbal influence, and as somebody who does not want to exert such influence over us. To this the process of dehumanization will soon follow as well simply because a human being defines him- or herself primarily as a being endowed with logos, a capacity of reasoned use of discourse; to which a tension, insecurity, distrust, uncertainty then follow automatically – in such a condition a noise of bumble bee is all one need to trigger the avalanche of violence, metaphorically speaking.

Obviously, the theory of dediscoursification is set on premises of discourse-ethics. There are many advocates of such ethical perspective, which is in contemporary setting normally related to the work of Karl Otto Apel and Jürgen Habermas.[4] However, it is important to have in mind that the tradition of discourse-ethics is much older than Apel or Habermas. I personally find some advocates of discourse-ethics who are more practice-oriented, and who standard philosophical or historical presentations do not include, much more inspiring and informative than either Apel or Habermas: for instance, a classical Greek rhetorician and theorist of language, Isocrates, or his follower from the era of Second Sophistic, Publius Aelius Aristides, and certainly George Orwell and Hannah Arendt among modern analysts.[5] Looking from the angle of political theory, the theory of dediscoursification leans primarily on two theoretical approaches: first, generally, in the sense of its conceptualization of the state of war, the theory draws on Hobbes and Clausewitz who both insist that “war is a continuation of politics by other means.” Secondly, and more specifically, the theory draws on republican political theory that theorizes the notion of liberty in light of the master-slave relationship as a relationship of primarily discursive character, and also as a relationship that involves continuation of the state of war through the period of an apparent peace (typically, a master treats his slave as ‘the spoils of war’).[6] Finally, from an epistemological-methodological point of view, the theory of dediscoursification adheres to the principles of methodological individualism – whenever we address the issue of dediscoursifying, we have to address some specific individuals as concrete users of language within a specific social-political context.[7] It is undeniable that a whole bunch of people suffers from an armed conflict, but we should not forget that, to a large extent, war is an effect of a flawed way in which some individuals use, and relate to, their own language primarily.

From the angle of empirical relevance of the theory of dediscoursification, I deem it well-grounded and supported by many examples from political history. The frequency with which some political actors assume a meta-lingual perspective concerning some other actors’ language, in the periods preceding the outbreak of war, is high; in other words, in the periods preceding the start of armed violence, some actors explicitly describe the other actors’ language as fundamentally flawed and irreparable: Egyptian president Nasser in 1968 emphasized that the force of arms is “the only language Israel understands;” similarly to Nasser, prior to the outbreak of war with Sparta in 5th century BC, Athenian statesman Pericles concluded that “they [Spartans] prefer war to negotiation as a means of settling the issue of complaints [about the Athenian way of interpreting of a clause of Thirty Year Peace]”, while the British Prime minister Chamberlain’s declaration of war against Germany in 1939 contains the following words: “The situation in which no word given by Germany’s ruler could be trusted, and no people or country could feel itself safe had become intolerable.”[8] The theory of dediscoursification is capable of providing a detailed and persuasive explanation of the ways through which the said political actors drew the conclusions embodied in the above propositions, and also through which some other political actors drew similar conclusions in similar situations (for instance, Milošević at the time of the collapse of Rambouillet negotiations, or Frederick Douglass in the aftermath of notorious ‘Dred Scott’ ruling by the US Supreme Court, which was one of the major causes of American Civil War).

To the readers from Balkans, or to those who are keenly interested in political relations within the region, the most interesting question may be put as follows: how is it with the process of dediscoursifying in Bosnia and Herzegovina (BiH), especially prior to the outbreak of 1992-1995 armed violence, and perhaps even today?

 

Izetbegović and implementation of Dayton peace agreement

AtthetimeI startedformulatingthetheoryof dediscoursification, Alija Izetbegović seemed to me to be able to serve as a highly pertinent and illustrative example.[9] There is no doubt that Izetbegović through 1991-1992 acted upon his political interlocutors as a dediscoursifier – he was demotivating them in the sense of producing in them the loss of belief in the possibility of arriving at a negotiated formula or compromise, a long term solution to BiH problems, in communicative partnership with him. Izetbegović’s discourse is filled with the examples of violation of all key values of moral-discursive matrix of language: for instance, we find many contradictory statements concerning essential issues and aspects of BiH politics; the statement on civil, ethnically unmarked BiH in parallel with the statement on BiH-Moslems as a foundational, and even majority, people to BiH who can claim some special rights over the state; or the expression of the wish to accept the condition of war with the aim of defending Bosnia’s full sovereignty in the sense of an undivided rule; but also the expression of readiness to arrange the relations within BiH in accordance with both Serb and Croat interests. Ultimate effect of such contradictions is easy to predict: your interlocutor ceases to ascribe some meaningful content to your statements because they cancel each other out, which then generates in your interlocutor the belief that, to you, language is neither an essential nor a binding medium. Furthermore, on a number of occasions Izetbegović indicated that he did not at all subscribe to the view of inherent power of argumentation or exchange of reasons as a part of political discourse: he interrupted negotiations with the Serb representatives at the most critical point in time because, in his view, the distance between negotiating positions implied that there could be no agreement, and also that negotiating per se did not make sense. He has not thought for a second that the offering of political reasons, and a joint assessment of such reasons aiming at a kind of compromise, was the only discourse-friendly strategy in the given conditions, and more importantly that it was the only strategy that could have prevented war from erupting.

However, as a dediscoursifier, Izetbegović most clearly acted so upon the others through his treatment of constitutional-institutional frame that was in force in 1992 (The constitution of Socialist Republic of BiH prior to declaration of independence in 1992), and also through his attitude to the agreements he endorsed or signed in February and March 1992 that could have prevented the war. In the former sense Izetbegovic of course was not the only culpable party as he was supported by the BiH Croat representatives: their walk towards BiH independence through referendum was joint one, and also their violation of the BiH Constitution then in force was shared too. According to the constitution then in force, any alteration of territorial-constitutional status of the Socialist Republic of BiH required two-third majority of the constituent peoples. However the referendum outcome failed to reach such a majority. This means that, in fact, the BiH independence referendum did not succeed, and, given the results of the referendum, Izetbegović together with the Bosniak and Croat political representatives had no right to declare independence. As they in fact declared it, they have violated the constitution then in force, which means that they have broken a collective promise that was supposed to be binding on all the peoples and citizens of BiH. Dediscoursification is a predictable effect of such a strategy: one cannot trust the person who fails to fulfill his or her promises simply because the failure to fulfill them indicates that, to the promise-breaker, language is not sufficiently binding; hence the language of all future promises, that all agreements normally involve, is unlikely to be sufficiently binding too, which necessarily has an adverse effect of one’s will to negotiate with a promise-breaker, given the fact that all negotiations are ultimately about the making of promises.

As to the second aspect of Izetbegović’s loose attitude to the agreements he signed, or to which he was implicitly committed, this was demonstrated unmistakably through his notorious reneging on two agreements: ‘Cutilheiro’s plan’ accepted in Lisbon a few days before the referendum, and the agreement on general principles accepted and initialed in Sarajevo in March 1992. Again Izetbegović acted in his role of a dediscoursifier: he reneged on the promises he made in a very critical situation in which such promises to all carried an utmost significance. To his political adversaries, for instance the representatives of the Serb people, this could have had only one impact: due to Izetbegović’s fundamental unreliability as a negotiator, hence as a user of language, they had to form increasingly the expectation that a war was forthcoming, which involved planning for an actual use of armed force. Additionally, one can today very successfully defend the view that, while Izetbegović was reneging on the said agreements, US Administration lent him their support and made his decision in favor of the war much easier; they have spotted an easily swayable actor who, due to his lack of faith in his own, internal political discourse, can be guided to this or that direction depending on a prevailing need. However, it is also interesting to note that, by the very end of Dayton negotiations, both American and European mediators remained uncertain as to Izetbegović’s readiness to sign the peace agreement.[10] Dediscoursifiers act upon all users of language equally: as the persons whose language can never be taken, or relied on, with confidence.

Today, of course, we are aware of the option Izetbegović ultimately chose at Dayton. He opted for a peace in the sense of a peace treaty that was set on relatively clear premises and signed with a specific understanding – two strong entities, one loose central government, and, of equal importance, representation of BiH constituent peoples through entities in the following way: BiH Federation as a shared Bosniak-Croat entity, and RS as an entity to represent primarily the Serb people in BiH.[11] Additionally, Dayton Constitution has endowed the entities with the right to establish special parallel relations with the neighboring states in accordance with the division of powers between the entity and the central level of government. Based on this provision, Republic of Croatia and the BiH Federation had such a special relationship, which was abrogated by Croatia on its road to the EU; a special parallel relations agreement between Republika Srpska and the Republic of Serbia remains in force.

I deem the theory of dediscoursification as an important theoretical frame not only for the purpose of elucidating the dynamics of relationship within the period that precedes the outbreak of armed conflict; the theory is of a sufficient strength and relevance to be applied to the periods that seem to be the periods of a post-war political peace. Hence, here we may immediately pose an interesting question: is the process of implementation of the Dayton framework for peace one of rediscoursifying, or is it perhaps of such a character that it too can be couched in terms of the theory of dediscoursification? In other words, assuming that the framework for peace embodies a collective promise, which implies primarily the commitment to be guided and bound by one’s own words under their agreed meanings, and also the capacity of rational argumentation in the condition of interpretive conflict, are we in position today to claim reasonably that the promise was fulfilled to a sufficient extent? Or, have some actors, by violating their own promise and thereby dediscoursifying their political partners, in fact showed the will to initiate a new round of armed conflict? In other words, have some actors, by relating to the language of the peace agreement in a harmful and discourse-unfriendly way, diminished in the others the will to resolve further political issues by negotiating, and thereby produced in the others both the kind of silence and the sense of dehumanization that, under suitable conditions, inescapably lead to an outbreak of armed violence?

There is no doubt that Alija Izetbegović considered the period of post-Dayton peace as a continuation of armed conflict by other means. To him the peace agreement meant but a frame that ought to be used as a tool to continue the war by verbal means including both legal and diplomatic channels. This can be documented easily by his public statements. One of his key theses concerning the Dayton Constitution reads that the constitution contains “an inaudible but dangerous war of provisions;”[12] this means that, as Izetbegović views it, war through one medium is simply replaced with a war through a different medium. One group of provisions takes one to one direction, as e.g. Bosniak-Muslim armed force did during the war, and another group takes one to a different direction, as e.g. Serb armed force did. The directions are opposed and irreconcilable; hence the only important question for Izetbegović may be put as follows: which group of provisions is likely to prevail at the expense of the other?

What we need to emphasize here emphatically is peculiarity of such a view: it is a strange and disturbing kind of legal-political hermeneutics within the confines of which the state of war cannot be distinguished from the state of peace. Language is not a medium that serves to stabilize relations or to contribute to an actual conflict resolution by, say, a compromise. It is a destabilizing factor, a medium in which the war continues, and which prevents arrival at a shared position or definition of compromise. Such an image of language affects one’s view of a peace agreement in the sense that it undermines or blocks two factors without which an actual peace implementation process cannot be envisaged: first, the factor of legal interpretation as a rational process that, on the premise of the agreement taken in its entirety, establishes the most solid and persuasive reasons in support of an interpretation that could be binding on all; secondly, the factor of a meaningful compromise that can effectively determine the contents of a collective promise to which the parties could effectively adhere – in Izetbegović’s view, there are only particular or individual perceptions of such a promise that generate a conflict over the meaning of the promise, and that therefore effectively undermine the notion of ‘commitment to the compromise.’

Had Izetbegović’s musings remained in the realm of theory, no serious political consequence would have followed; however, Izetbegović has also made his views operative in the sense of a demand with a legal force and effect. Some serious political effects have then taken place of which political destabilization of the BiH state, that marks the period from year 2000 till today, is the most disturbing one. How has such post-Dayton destabilization of relations been effected?

First of all, we need to have in mind an important fact: in early 1994 Izetbegović adopted Washington agreement on BiH Federation with a specific understanding in mind – BiH Federation is an entity constituted jointly by two constituent peoples, BiH Croats and BiH Bosniaks. As Izetbegović at a BiH Presidency session from 1994 emphasized, the Serb people are not constituent to the BiH Federation because that would means that “Serbs get a half of power within the whole of BiH, and one third in the BiH Federation.”[13] Such Izetbegović’s attitude remained, of course, unchanged at the date of his signature to the Dayton Framework for Peace, and continued unabated after the signature, in the period of the beginnings of implementation of the Dayton accords. One can undoubtedly recognize such an understanding in the structure of the Dayton constitution: the fact of separate entity-based constitutionality of the constituent peoples of BiH, of Croats and Bosniaks within the Federation and Serbs in the Republika Srpska (RS), is translated into adequate institutional forms; for instance, two members of the BiH Presidency (‘Croat’ and ‘Bosniak’) are elected from the territory of the Federation, whereas one member (‘Serb’) from the territory of the RS; similar forms dictate the method of electing of the BiH House of Peoples representatives; additionally, the fact of separate entity-based constitutionality is a source of the rationale for the right of establishment of special parallel relations between the entities and the neighboring states.

However, in 1998 Izetbegović changed his view to the opposite direction. He submitted an appeal to the BiH Constitutional Court that contains the request to delete, or put out of force, exactly the provisions to which he signed in the period from 1994 till 1995. By reading carefully his appeal, one can quickly and unmistakably realize that Izetbegović now aims at devaluation of the key provisions of the Dayton Constitution for BiH: for instance, the provision on constitutionality of the peoples as entity-mediated; the provision on parallel special relations between entities and the neighboring states; the provision on the powers of entities in the area of civilian command authority over the armed force; and even the provision on official languages to be used by constituent peoples within entities.[14] Izetbegović founds his appeal on a simple idea: preambular provision on BiH constituent peoples needs to be interpreted as implying equal constitutionality throughout the BiH territory, which implies transformation of BiH entities into multiethnic units. Of course, the appeal is a kind of a symbolical projection, or a piece of symbolical struggle – Izetbegović is fully aware of the fact that the Bosniak and Croat population of RS is significantly reduced in size, which implies that actual consumption of the right of constitutionality (throughout the BiH territory) is bound to be of a very limited, actually negligible, character.

Such Izetbegović’s reasoning could have been then, as it could be now, easily defeated on the basis of the text of Dayton Constitution as it was initially, originally understood and signed in the course of Dayton negotiations: all the peoples of BiH are indeed equally constituent throughout the BiH, but ‘BiH’ under Dayton means only a certain level of power; additionally, all the peoples indeed implement their status of constituent peoples throughout the BiH, but such implementation takes place through explicitly defined institutions and in the areas of government that Dayton Constitution explicitly refers to. Primary constitutionality of the peoples pertains to them through the entities simply because the representatives of specific peoples as peoples have constituted some specific units of BiH as a federal constitutional arrangement, but the three peoples have not constituted jointly both units. The Serb people representatives, as Izetbegović already emphasized, have not constituted the BiH Federation, hence their primary constitution-making role cannot be implemented through the bodies of the BiH Federation. Constituent peoples have given their explicit consent to establishment of specific entities, but then secondarily, also to establishment of BiH as a central level of government in accordance with the list of powers of the state, which is again entity-mediated in the sense that it preserves the fact of representation of the entities at the central level – the fact that BiH is a federation makes such arrangements easy to understand.[15]

Altogether, this means that Izetbegović again acts as a dediscoursifying agent in the period after adoption of the Dayton peace package, both through his public political acting and through his appeal to the BiH Constitutional Court. He in fact conveys the following message: “the language of the peace agreement is binding on me, but not in the sense in which it is binding on other actors. My promise is understood by me in my own way; if the others have taken the promise to mean something else, this is their own problem. My only commitment is to achieve through the language of the peace agreement those goals that I set as my own prior to, and during, the war. I do not discuss such issues with my political adversaries; I simply fight for such goals, this time through the appeal to the BiH Constitutional Court.”

Long-term effects of such a view had not yet been clearly recognized. Izetbegović’s appeal has produced a symbolical revolution in BiH, not in a positive sense of the word, and has undermined the very fundamentals of post-Dayton BiH. The appeal has in fact clearly signaled that one key party to the peace treaty in fact reneged on the compromise; the party has transformed the compromise-related elements of the treaty into a means to recover and resume the process of implementing of its war-time aims. In a theoretical sense, this is an extremely important phenomenon: the phenomenon clearly indicates that the state of peace to a large extent depends on an actor’s attitude to language: if the actor did not endorse some standards of discourse, some discursive values, as a part of his or her political communication or an effort to act upon his or her political partners and interlocutors (which involves primarily the standard of promise-fulfillment under a prior joint understanding of the promise, or under an understanding that is jointly determined through the most persuasive reasons of interpretation), alienation, cessation of communication, and consequent destabilization of relations are normal and predictable effects.

However, one should not dismiss an important fact. In his dediscoursifying Izetbegović does not act alone. In fact the strongest actors of international community lend their support to Izetbegović’s movement towards the dissolution of a sophisticated Dayton compromise. How, and more importantly, why has such a support been given, and what are its actual consequences?

 

“International community”

How did key actors of international community take part in Izetbegović’s project of dediscoursification in the course of an apparent implementation of the Dayton peace plan? Most importantly, BiH Constitutional Court has on 1 July 2000 responded positively to Izetbegović’s appeal. One should have in this regard two crucial things in mind: BiH Constitutional Court has not accepted all the parts of Izetbegović’s appeal, but it has accepted the key one, to change the definition of entities into multiethnic units and to divorce the concept of ‘constituent peoples’ from the two-entity Dayton structure, which immediately implied the demand that some key provisions of the entity constitutions be annulled.[16] Secondly, a majority of Constitutional Court benches have indeed supported Izetbegović’s appeal, but it was a narrow one: the Constitutional Court vote was along the lines of ethnic separation; the two Bosniak judges were for it, the four Croat and Serb were against it, while the balance was tilted in favor of Izetbegović’s appeal thanks to the vote of three international judges who sided with Bosniak ones in this matter. Here, at a small arena, we see continuation of war by other means, we see ethnic polarization, and we see a victory that was imposed by a foreign quasi-mediator/arbitrator.

What explains such an attitude of international jurists who have in this case simply acted as an extended hand of some influential international actors, the USA and UK primarily? It is not difficult to propose an answer to such a question; the international actors, including USA primarily, did not take the Dayton compromise seriously either. They took it simply as a pretext to continue the war in BiH by other means. In addition to the acting of Bosnian post-Dayton dictator, i.e. High Representative, whose very acting generates dediscoursification,[17] the key factors in this regard are to be found in the views of some key international actors who have either openly and directly supported Izetbegović or endorsed a view of the Dayton peace agreement that indirectly supported Izetbegović’s symbolical undermining of the fundamental structure of the Dayton agreement.

Forinstance, when, inparalleltotheJuly 2000 rulingbyBiH ConstitutionalCourt, the chief architect of Dayton openly stated that the recognition of RS, under such a name, was a mistake, one can immediately sense that the affair meant or involved a kind of collusion, or connection. Here I will remind the reader of the facts that elucidate such collusion in unambiguous terms. In order to place such facts within a single conceptual frame, first I refer to a brief paragraph from an article by James Adams that was recently published at Transconflict and also a forum of American NGO Building Peace:

“According to diplomats I interviewed in Bosnia the current highly dysfunctional and discriminatory ethno-political constitution and governmental structure, as instituted by the Dayton Accords to stop the war, was assumed at the time to be transitional by the original international negotiators. However, it was not officially designated as such due to a compromise with Serbian hardliners who preferred the Dayton-sanctioned post-war territorial status quo and segregated political arrangements. Therefore, no plan or timeline was set in place to officially facilitate a transitional process to a viable non-ethnic based constitution and governance structure. The Dayton ethno-political constitution defaulted to expedited fear-based ethno-political elections that only served to entrench hardline obstructionists in power and institutionalize structural violence.”[18]

What does this paragraph in Adams actually tell us? First of all, it embodies a perspective on Dayton that is fully in accord with the Bosniak-Muslim political elite, including Alija Izetbegović. Such a perspective cannot be discerned in the words of the Russian Federation representatives, or of many other representatives of EU nations, and especially it cannot be discerned in the words of RS representatives. Secondly, the paragraph single-handedly projects the key problem in one party to the BiH – in other words, it defines the RS itself as a problem, not as a constitutional category or as a part of the structure that defined a compromise and thus brought the armed conflict in BiH to a close. Thirdly, the paragraph in fact nearly explicitly claims that the key mediators or international actors (have in mind that, within this context, we deal primarily with the US representatives and diplomats) did not take seriously the Dayton Constitution for BiH. They took it as something that is about to be soon dissolved. Additionally, this means that the Constitution currently in force is nearly explicitly designated as a means of deception of ‘Serb hard-liners.’ The Constitution was envisaged as something that should have motivated such hard-liners to a form of cooperation, but it was meant to play only a transitional role. Adams fails to explain how such a motivation could endure through the period of a radical alteration of the constitutional frame, and personally I am inclined to treat this part of the story simply as an expression of surreal American optimism. Fourthly, and finally, we need to notice that such a characterization of the Dayton agreement imposes on one a very uncomfortable intellectual dilemma: designation of a peace frame as transient and temporary implies some perspective on a frame that should replace the current one; however, such a perspective ought to be sufficiently realistic in the sense that it should be sufficiently supported and deemed legitimate by the key local actors of BiH politics; the dilemma is in the fact that the latter criterion contradicts the very designation of a peace frame as transitional and temporary. Additionally, if one designates a peace frame as transient just like that, and if one enjoys the status of a super-power and also of one of the chief sponsors of the frame, then it is very likely that all local parties to the frame will understand this as a signal that they need not adhere to the provisions of the peace, or that they could view the peace frame as but a short-lived mirage. Here is where one enters the field of dediscoursifying again, i.e. where one becomes a dediscoursifying agent.

Within the global conceptual frame thus explained, a large number of statements by some key planners and implementers of the US policy in Bosnia can be understood with no effort at all. Similarly to Izetbegović, James O’Brien, chief US legal advisor at the time of drafting of the Dayton constitution, frames the Dayton constitution in terms of ‘a war of provisions:’ he names one group of provisions as ‘backward looking’, hence regressive, and another group as ‘forward looking,’ hence progressive and preferable provisions.[19] That is why implementation of Dayton peace can be framed simply as a process of putting of some provisions out of force, or of diminishing their legal strength and impact, which unfortunately also implies undermining a compromise. In addition O’Brien openly conceded that, within the process of Dayton implementation, vagueness and ambiguity of some provisions was amply exploited by international actors.[20] Former chief US mediator for the BiH Federation, Daniel Serwer, in a private communication, conveyed to me that he tended to characterize the Dayton Constitution in the same fashion as Izetbegović, as an assembly of contradictory stipulations. Furthermore, at least three high representatives, Ashdown, Petritsch, and Inzko, gave some key statements that can be elucidated only within the aforementioned conceptual frame: Ashdown stated that his job as a high representative was to “gradually dismantle the Dayton structures” in order to create “efficient state-institutions.”[21] In other words, one high representative openly tells us that, in the style of American foreign policy and Izetbegović’s attitude to the Dayton Constitution, he in fact undermined the Dayton agreement and treated it as a pretext to create something that the parties to the agreement have not jointly sanctioned in late 1995. That is why Ashdown, after setting in place the armed force of BiH, moved the process of undermining of Dayton accords in the direction of establishment of ‘BiH police force’ (which is not foreseen by the Dayton constitution), but was, fortunately, countered and stopped at least temporarily. Austrian Ambassador Petritsch was one who, through his amendments (signed suitably as he was departing from BiH), transformed the BiH Constitutional Court July 2000 decision into institutional reality of BiH entities (of course, one needs to have in mind that his amendments provide only one of several possible interpretations of the July 2000 decision), and thus set the institutional conditions for the process of un-constituting of BiH Croats; also, we need not forget Petritsch’s frequent characterization of Dayton Constitution as a ‘straitjacket for BiH peoples and citizens.’[22] More recently, in April 2011 another Austrian high representative, Inzko issued a famous statement to the effect that BiH needs to be preserved in order to avoid “posthumous award-giving to Milošević and Karadžić.” Again, we see a high representative who attributed the key problems of BiH to the Serb party, to the Serb ‘aggressors and rapists of Bosnia’, which fully coincides with Izetbegović’s both war- and post-war policy. Finally, American Vice-president Biden, in his May 2009 speech before the BiH Parliament, demonstrated that, when it comes to the Dayton peace accords, he was interested in two basic things only: “We [USA] are your project;” this means that the ideal of BiH politics has been pre-defined – BiH politics need simply to follow the American ideal leadership as determined by the USA alone; secondly, as Biden emphasized, “today’s majority may tomorrow become a minority” – this clearly indicates that Biden was not at all concerned with the notion of constituent peoples, and, more importantly, was taking the basic constitutional constraints of Dayton not as really constraining or binding on the parties, but as relative and fluid elements that may soon change their position or weight within a loose constitutional frame.

Summarily then, one can clearly recognize the fact that the key actors of ‘international community’ buttressed Izetbegović’s post-Dayton acting, or perhaps, more precisely, treated Izetbegović as a medium through which constitutional constraints of Dayton can be weakened to pave the road towards a post-Dayton era in which ‘ethno-politics’ will cease to matter. Their own and Izetbegović’s attitude to the Dayton framework for peace are indistinguishable: they both deem the framework as a fig-leaf to impose an arbitrary interpretation (sanctioned by the figure of High Representative), or, euphemistically speaking, a creative revision, which, from the perspective of two constituent peoples of BiH, amounts simply to violation of a collective promise. Again, a predictable effect has followed: key actors of BiH politics are faced with the process of dediscoursification, of gradual suppression of the belief in the role and significance of language in international, or inter-group, relations, which is bound to lead to an increased readiness to tackle political conflicts and problems by non-discursive means.

This means that, nearly twenty years after adoption of the Dayton agreement, political situation in BiH is essentially similar to one in early 1992; again, language is marked as a factor that makes no difference in politics; again, key institutional frame is made practically meaningless; again the key actors sense mutual alienation due to the loss of trust produced by a non-committal attitude to one’s own word-promise, and to language in general. The situation is strikingly similar to the situation Cicero accounted in his famous passage from De Officiis: Spartan king Cleomenes signed with his neighbors a truce that should have lasted for thirty days (triginta dierum); however, a few days later he started raiding the fields of his neighbors, but did so over night – Cleomenes ‘justified’ his misdeed by emphasizing that the truce refers to days, not to nights. Cicero brings forward this example as an illustration of an important legal saying: summum ius summa iniuria, i.e. “a maximally stretched law involves a maximal injustice,” and adds that such overstretching of law is performed through a malitiosa interpretatio iuris, a malicious legal interpretation.[23] Within the context of the political relations in post-Dayton BiH, a pertinent question may be put as follows: how far has such overstretching of law in BiH gone, what has exactly motivated it, and can this condition be amended?

 

Conclusion

The first part of the question can be answered easily. The overstretching of law in BiH has not yet reached a maximum degree. Also, it is unrealistic to expect that the legal overstretching through a malicious and imposed legal interpretation can be further continued. For instance, it is nearly impossible to envisage a situation in which one takes one step further in direction of a further un-constituting of BiH Serbs through a direct assault on the RS by legal and diplomatic means (for instance, by demanding that the name ‘RS’ be modified and its ethnic attribute removed). Hence, and especially judging from some recent statement by relevant commentators, analysts, and even actors, it seems that the continuation of war in BiH by non-violent means has come to an impasse. However, interestingly, nobody seems to be satisfied by the degree of change actually effected. Actually, it seems that many actors are less satisfied today than in 1996 or 1997, which seems somewhat bizarre.

As to the issue of motivation, which is actually the key question, I do not think that I am able to give an unequivocal and straightforward response. What has actually, in reality, motivated the key players, such as US and UK, and a part of the EU, to disturb the subtle compromise reached in Dayton, and to side with one party to the BiH political conflict? What has motivated the former to thus produce great expectations in the latter, and also to discourage and alienate the other parties in BiH both from the peace process and the BiH constitutional frame as actually implemented? In other words, why dediscoursification when it is least needed? Some hypothetical answers can be formulated, but I am not certain about specific weight of each of the factors I will now point to.

It is possible that, as I noted earlier (in my essay on some disconcerting aspects of American foreign policy towards Bosnia-Herzegovina), that the US presents itself primarily as a protector of Bosniak-Muslim component because such an image enables them to neutralize the bad image of America as ‘anti-Muslim force’ (Iraq, Syria, Libya, Israel-Palestine, Iran etc.). Secondly, it is possible that foreign actors intend to preserve BiH in the state of low-level but non-armed conflict, which enables them to intervene as they wish and, more importantly, to test their mutual relations on a mini-model. Thirdly, it is possible that the complication and destabilization of relations in BiH is motivated simply by a colonial sympathy for dramatization: once you decide to assume the status of a colonizer in a country, which international community did through the figure of high representative, you cannot simply say to the local actors the following: “guys, here is the peace agreement; you simply read and implement it; should you disagree on some detail, you need to negotiate and continue negotiating until you reach an agreement.” As a colonizer you need some kind of drama, an internal tension in your colonial house to create impression that there is something worth fighting for. For instance, you fight for the ideal of multi-ethnicity, or the ideal of punishing the aggressor, or the ideal of correcting the injustice caused by the war, or the ideal of overcoming the ‘backward ethno-politics’, or something similar.

Fourthly, it is quite possible that the colonizers got carried away in their business of ‘state-making.’ As entities connote some division and separation, ‘state-making’ should connote reintegration, the overcoming of divisions, and conflict-resolution. Some naïve people have perhaps thought that ‘state-making’, which in the context of Dayton actually means ‘expansion of the central powers of the government,’ can be presented as universally acceptable and as bringing order into a complex community, which ought to be accepted by all. Why should not the peoples cooperate at the state level, and, once they do so, why should they need entities? In other words, here we see a naïve kind of motivation – we envisage a foreign mediator as a peace-maker with the role of state-maker who is confident about his role regardless of the responses such a role produces locally, within the ethnic communities of BiH.

Fifthly, one should not forget financial motivation and the influence of very local factors. First, international officials in BiH are well paid, and for this one needs to create the impression that one has indeed been very busy, that one is engaged in some matters that are of critical importance for BiH. For such a purpose, what can be better than the impression that the BiH is still beset by a war over key political issues? One should, for instance, have in mind that, for year 2013/14, which was a very low point in terms of international engagement, and payment, in BiH, the OHR budget amounted to more than 7 million Euro, with the EU providing more than a half of the funding. That money, however, is simply paying the salaries of international officials and their local assistants, but is then also spent by the local actors including the local landlords, hotel-owners etc. Additionally, the state which is every so often endangered by a serious political conflict tends to get poorer every day, which however improves the chance of foreign investors or buyers to buy some sectors of the impoverished economy at a lower price. Now, as to the influence of local factors and elites, have in mind that the institutions of international community are mainly located in Sarajevo; hence it is much easier for the advocates of Bosniak unitary politics, or for some kind of anti-Dayton and anti-ethnic intellectual elite, than for intellectual elite in Mostar or Banja Luka, to influence those institutions.

Whatever one’s response to the issue of motivation, one thing is strikingly clear: BiH politics in post-Dayton period is to a large extent a politics of continuation of war by other means, and for such a continuation the international actors are indeed chiefly responsible. The politics looks like a perfect embodiment of Foucault’s dictum that, in certain contexts, one needs to invert the famous dictum by Clausewitz to the effect that “war is continuation of politics by other means.” We saw that, in this regard, the international representatives exploited Izetbegović’s generally non-binding attitude to language, and in particular to a peace agreement. It is again advisable to emphasize both Izetbegović’s and O’Brien’s characterization of Dayton Constitution as a contradiction writ large: in a purely discursive sense, such a characterization has two key effects – first, it implies that Dayton Constitution is binding neither on Izetbegović nor on O’Brien since a contradiction can bind none; secondly, such a characterization makes the job of ‘interpretation’ of the constitution extremely easy, but also unavoidably irrational; as to the latter, the job is bound to be irrational since a contradictory proposition entails all propositions and no proposition at the same time; and the job is made extremely easy because, to Izetbegović and O’Brien, it can be reduced to an arbitrary selection of a single proposition from the contradictory pair – conveniently to Izetbegović and O’Brien, it is a proposition that reflects the interest of Izetbegović (and O’Brien) and excludes the interests of the other parties; however, one also needs to have firmly in mind that the proposition coincides with Izetbegović’s key war-time aim, a fully sovereign and indivisible BiH in which individual, and not collective, rights play the key constitutional role. Hence, it is clear that such a constitutional hermeneutics, supported also by high representatives to BiH, in fact reproduces the state of war within the medium of an apparent implementation of Dayton framework for peace.

Lastly, can the situation be amended? Is it possible to secure a transition from a discourse-unfriendly politics (1991-2014) to a politics that respects discursive values and demonstrates a higher degree of civilization by, for instance, fulfillment of the promise in the way that satisfies all the parties who jointly gave it? In principle, the answer to this question is in the positive. However, one should not forget that in the meantime, in the course of Dayton implementation thus far, some damage was inflicted, and that one should repair the damage in order to create a stable basis for the politics of rediscoursification. Besides, some actors ought to assume responsibility for such a damage which, in our case, cannot be attributed solely to ‘the hard-liners’ or ‘ethno-political elite,’ or whatever name one chooses for those local ‘baddies.’

Reasoning in such a direction, BiH actually needs a much deeper change than one that would be effected by a new constitution; also, I am very uncertain as to the following issue: has in BiH remained a minimum amount of trust that is required for implementation of any constitution? Therefore, for now, perhaps we should all welcome the possibility of rewinding the time back to late 1995, the period of arrival at original Dayton formula for BiH, with the international community giving the promise that no high representative would ‘come to help’ BiH as it was done in late 1997. However, this kind of scenario is of a low likelihood despite its fairness and a maximum benefit to BiH. It is much more likely that we will continue to vegetate politically in the state of post-Dayton war, in a fluid and to all an uncertain context, which to a large extent simply reflects both the character of pre-modern communities and immoral Realpolitik of major powers. Actual profit, which is in a postmodern world the only value that matters, must have already been distributed among some privileged actors; the post-Dayton war in BiH, in this kind of perspective, serves as a useful veil that protects those actors from both public scrutiny and an annoying interference by the bodies of the state.

[1] See Pehar (2011, 81-89), (2012), (2013); for some early response, see Matteucci (2012) and Chamberlain (2013); in my previous work I used the word ‘dediscoursation;’ following a sensible suggestion by Philip Pettit, the term is now changed to ‘dediscoursification.’

[2] Also we need to remember that some nations are inclined to characterize themselves as nations ‘that in the times of peace lose the gains made in the times of war;’ we find such a cultural stereotype in diverse nations, for which see (2013, 14).

[3] More precisely, in Pehar (2013) I advocate the view that such discursive values can be reduced to four foundamental ones: ‘meaning’, ‘truth’, ‘reason’, and ‘promising.’

[4] Apel (1973), Habermas (1983); also Kettner (2006)

[5] Orwell (1961), Arendt (1972)

[6] For the principles of republican political theory, see, for example, Pettit (1999) and Bobbio, Viroli (2003)

[7] Those who are interested in the perspective of methodological individualism should consult primarily the work by Jon Elster.

[8] For the sources, see Pehar (2013, 3).

[9] Here, and in the next few paragraphs, I simply draw on Pehar (2011).

[10] See Holbrooke (1999, 224, 271, 302)

[11] Holbrooke (1999, 96-7)

[12] Izetbegović (1998, 192)

[13] The quote and context in Kostić (2013, 28)

[14] See http://www.ohr.int/ohr-dept/legal/const/pdf/Djelomicna-odluka-3.pdf (accessed on 30 October 2014)

[15] See Pehar (2014a)

[16] See http://www.ohr.int/ohr-dept/legal/const/pdf/Djelomicna-odluka-3.pdf (accessed on 30 October 2014)

[17] See Pehar (2014b)

[18] Adams, James, „Bosnia – Stabilization Stalled in Negative Peace“ (Transconflict, 27 October 2014), http://www.transconflict.com/2014/10/bosnia-stabilization-stalled-negative-peace-270/ (accessed on 30 October 2014)

[19] Kostić (2011, 109-112)

[20] O’Brien (2010, 348)

[21] Interview to Dnevni Avaz (Sarajevo, 16 May 2009)

[22] It is interesting to note that Petritsch applied Marxist doctrine of ‘withering away of the state’ to the process of gradual disempowerment of High Representative, for which see Kostić (2013, 38, note 16); this demonstrates complete political ignorance of the person who once played the dominant role in BiH politics.

[23] See Cicero (1921, I33); it is important to have in mind that Cleomenes can be presented as one of the first practitioners of ‘postmodernist philosophy’ in the area of practical hermeneutics of peace agreements; postmodernist philosophy views meanings as fluid, unstable and open to a never-ending process of interpretation, and it also teaches that there is no truth, but only different perspectives, and that, due to what postmodernists present as principal incommensurability of criteria, the strength of competing reasons can never be fully determined. I deem postmodernism simply as an assembly of incoherent and self-defeating propositions; however, one needs to have in mind that the intellectual trend has exerted enormous (and harmful) influence over many areas of contemporary both social and political life. For an eloquent critique of postmodernism, with which I to a large extent agree, see Gellner (1992).

References

Apel, Karl Otto (1973), Transformation der Philosophie (Band 2), Frankfurt am Main: Suhrkamp

Arendt, Hannah (1972), ‘Lying in politics,’ in: H. Arendt, Crises of the Republic, New York: Harcourt Brace Jovanovich, Inc., pp. 3-47

Bobbio, Norberto, Viroli, Maurizio (2003), The Idea of the Republic, Cambridge: Polity Press, translated by Allan Cameron

Cicero (1921), De Officiis, London, New York: Heinemann and Macmillan

Chamberlain, Jo (2013), ‘War and ‘de-discoursation’: a research frame – A linguist’s response’, Archbishop Desmond Tutu Centre for War and Peace Studies – Liverpool Hope University, Working paper series no. 2: http://tutu.hope.ac.uk/research/workingpaperseries/ (accessed on 30 October 2014)

Gellner, Ernest (1992), Postmodernism, Reason and Religion, London and New York: Routledge

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Kostić, Roland (2011), ‘Education through regulation? External intervention in domestic politics in post-Dayton Bosnia and Herzegovina’, in: Fjelde H., Höglund K. (ur.), Building Peace, Creating Conflict? Conflictual Dimension of Local and International Peacebuilding, Nordic Academic Press, pp. 105-129

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Framing the State in Times of Transition, Washington: United States Institute of Peace Press, pp. 332-349

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Pettit, Philip (1999), Republicanism, Oxford: Oxford University Press

About Author

Dražen Pehar

Dražen Pehar

Dražen Pehar (1967): PhD in politics and international relations from the Keele University (UK) in 2006; in 1997 Masters in Diplomacy from the Mediteranean Academy of Diplomatic Studies (MEDAC), Malta, with summa cum laude. The author of Diplomatic Ambiguity (LAP Lambert Academic, 2011) and many scholarly essays published at home and abroad. Lectured in political science at SSST (Sarajevo) in 2008/9, DIU (Dubrovnik) in 2010, and in diplomacy ('Language and diplomacy') at the DiploFoundation (Geneva, Malta) in 2000/1.

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