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Why has Bonn-powered High Representative never been a sign of progress for Bosnia-Herzegovina: four reflections

Why has Bonn-powered High Representative never been a sign of progress for Bosnia-Herzegovina: four reflections

Why has Bonn-powered High Representative never been a sign of progress for Bosnia-Herzegovina: four reflections
October 08
12:48 2014

Author: Dr Dražen PEHAR

„For the subjects to accept the potestas absoluta

of the sovereign requires that they regard him with terror,

as indeed is the case of Medusa and Dionysos. Hobbes’s

monster state and monster sovereign end up in unorthodox

company: among the demons, gods and idols of the heathen.”[i]

 

1

Let’s start with an important legal fact that a large majority of commentators or analysts never took seriously: in 1997 the High Representative for Bosnia-Herzegovina (BiH) has of his own assumed all the constituent powers in BiH, supporting the expansion of his powers by the claim that this was in accordance with the Dayton Framework for Peace (DFP). The decision he made was, and could have been only, his own. It, for instance, could not have been a decision by the signatory-states to DFP, or by the witness-states, simply because those states had not have a more direct and independent role as a part of the process of implementation of the peace (except for the part on ‘special parallel relations’ that is a discretionary right of co-signatories, the Republic Croatia and today’s Serbia). The only body that had a more direct and independent role was the High Representative (HR) himself (or itself). This is why, at Bonn conference, in late 1997, the Peace Implementation Council (PIC) simply “welcomes” the decision by the High Representative to use his broad powers that today we wrongly call ‘High Representative’s Bonn mandate’ (such powers were not given to him through the conference, but to his assumption of the powers was, as said, expressed ‘welcome’) that includes the power to dismiss elected officials, to impose or annul laws in Bosnia-Herzegovina, or to take any other measure he deems appropriate.

In other words, the PIC cannot be viewed or interpreted as a source of legitimacy of the decision; the decision was not an outcome of a debate, discussion, or a mechanism of democratic decision-making; it is an extension of a body that sprang from the body itself. Hence, in theory, no High Representative, acting under the Bonn mandate, has the duty to explain his own decisions to anybody. Under the Bonn mandate, he is a self-constituted institution that founds itself through an interpretation of DFP which is not, and does not have to be, explicit. The official grounds of the decision by the HR have never been made public. Carlos Westendorp, the 1997 HR, gave some comments in a local press that partially explain his decision in his role of HR; however, his comment hardly amounts to a legal interpretation, let alone justification. As I claimed elsewhere, right at the start it was impossible to provide for a sound legal justification of the Bonn-powered HR’s self-constitution.[ii]

In Legality and Legitimacy, a masterful legal-political analysis by Carl Schmitt, published just before the disintegration of Weimar Republic and the transition into the state of Nazi Germany, Schmitt refers to a possibility that is always open to the party winning an election: the party can use so-called ‘supra-legal premium on political exercise of power;’ it can take the implementation of a constitutional frame to a direction that involves violation of the right of ‘equal chance’ to the remaining parties simply because it enjoys the privilege of making the first move, and because all legal remedies (for instance, an appeal by a minority party to the constitutional court) necessarily come late and take time that the victorious, and revolutionary, party can use to effect a radical alteration of the constitutional order. As Schmitt emphasized, the party can in particular effectively rely on the executive branch of power that acts through decrees, orders, ad hoc decisions, to undermine completely the existing constitutional order and assume all governmental powers.[iii] This is exactly what in 1933 the German National-socialist party did. Now, have in mind that Schmitt discussed a possibility in principle; he referred to a threat that shadows all democratically elected governments; the only thing that is really required for the ruling party to materialize such possibility is to remove its signature to the foundational values of a constitutional-democratic type of government (such as justice, peace, stability, the rule of law, not of individuals or groups, and the separation of powers), or to reinterpret such values arbitrarily according to its own will, and endorse, and impose on others, the illusion that its own interest is indeed a public or common good.

It is interesting to note that the HR ascribed to himself primarily the role of the executive power, but not as a part of the tripartite constitution-based association of branches; he acts in the role of an executive that outgrows both legislative and judiciary power. In the hands of the HR the executive power is actually ‘discharged immediately’: his decrees must be implemented with no delay or mediation – his decisions have the force of unquestionable, non-opposable execution that is not channeled through a series of institutional intermediaries.[iv]

Now I will remind the readers of the words that Westendorp, a Spanish Ambassador, at the time of Bonn-empowerement used to explain his new role: he stated that, under DFP, he „has been empowered to interpret his own powers.“[v] We, naive Bosnian-Herzegovinian citizens at the time were not consulting the DFP in order to check the real presence of the provision in the agreement. Of course, the provision is not there, while one that distantly reminds of it should be, under reasonable interpretation, given an entirely different meaning. However, we should note a more important matter: all institutions within a constitutional-democratic system are endowed with the power to interpret their own powers under the constitution. Actually, without such a power of self-interpretation, no institution is able to function properly. However, the idea that Westendorp smuggled through his official explanation is entirely different: it is the idea that the HR, under Annex 10, gives an interpretation of DFP in its entirety that is, by definition and a priori, superior to all the other, possibly competing interpretations. In other words, the essence of Westendorp’s words does not concern ‘the power of interpretation of one’s own powers’, but ‘the power to impose one’s own interpretation as inherently, automatically superior independently of the reasons offered.’ For a start, let us notice that the idea cannot be in principle reconciled with the intellectual pillars of democracy. There cannot be a document, a Constitution, or a Law, that could found such an institution and still be called a document on a democratic form of government.

The considerations given thus far can be presented in the form of a fourfold thesis: the Bonn-powered HR is based on four fictions: the first one is the fiction of self-constitution or self-grounding; the second one is the fiction of the principled non-opposability to HR’s decisions; the third fiction is one of immediately executive character of his decrees; and the fourth one is the fiction of his a priori interpretive superiority. Why do I call those things fictions? Simply because such a body cannot exist, or be valid, within any contemporary democratic frame. There cannot be a body that self-declares its own mandate and powers; there cannot be a body whose word is automatically executed (for instance, in all normal democratic systems a judicial decision is subject to strict methods and procedures of verification and execution in which the legislative and judiciary take part too – for instance, the members of parliamentary commissions or members, or appointed representatives, of government). Besides, the fiction of ‘immediate executive power’ is based solely on the presence of foreign military in BiH. Also, there cannot be a body whose legitimacy could not be questioned, or criticized or opposed, under some conditions. Finally, there cannot be a body to which all the other bodies should give a blind ‘hermeneutical’ trust in the sense of the body whose interpretations not only of his own, but also of the other bodies’, powers are so perfect that it must not be called to offer explicit reasons for its interpretation.

The topic of the origins of such fictions, or of motivation that was driving the international community at the time, deserves a separate and detailed analysis that here I cannot offer. It is possible that, to a large degree, some emotions, or the fresh memories of the war in Bosnia-Herzegovina, played a major part. BiH was viewed as an unstable and conflict-ridden social or political environment in which the peoples or citizens have not yet reached the desired degree of maturity that could enable them to run their own affairs independently. In such a context the idea that almost immediately arises is an idea of external mediator, or governor, who needs to keep things in control; an idea of a ‘fourth’, unemotional, impartial and unbiased, party who can pass sufficiently wise, compromise-based decisions, and is strong enough to impose them. ‘Leviathan,’ or at least a rudimentary image of Leviathan as a Hobbesian transformer of ‘the state of nature’ (which is the state of war of all against all) into ‘the state of orderly commonwealth,’ emerges as a nearly automatic response to all serious social-political conflicts. However, I also believe that today one can with no difficulty demonstrate that, in instituting the ‘Leviathan’ in BiH, already in 1997 some actors of international community have had a hidden agenda.

Putting aside such emotion-laden aspects of the need to endorse the fourfold fiction of the Bonn-powered HR, the fiction could have been very early, perhaps right at the start, viewed as at least potentially detrimental. It is clear that a change that is imposed externally, by an outside agency, has a shorter expiry date than a change that comes from within and involves actual transformation of the local agents in the sense of their political culture or democratic and institutional competence. Furthermore the conflict is not dangerous or detrimental in itself. It can be detrimental if it is not resolved through a reasonable dialogue, or when there is no readiness to strike a compromise, or when one of the parties rightly sense that their participation to the conflict is not on an equal footing.On the other hand, the conflict may provide a strong incentive to search for creative solutions and institute some new social and political forms of government that may even inspire some other states, nations, or political decision-makers. Such solutions are superior to those imposed by the Bonn-powered HR regardless of the latter’s assumed intelligence, fairness, or benevolence; now, in light of such creative solutions, the disadvantage of HR’s impositions can be reduced to the fact that an externally tailored, and short-term, arrangement is adopted instead of a locally produced, and long-term, one. In my mind, the idea that the HR’s interventions are flawed in such a sense is a weak thesis. In reflections offered here I advocate a much stronger thesis: for a number of clear and pertinent reasons, the acting of Bonn-powered HR is inherently damaging to Bosnia-Herzegovina as a state and also as an association both of entities and of peoples and citizens.[vi] This thesis could have been easily and, with much better consequences, endorsed already in early 1997 or in 1996. The fact that it was not endorsed then may be interpreted in at least three different ways: as an effect of incompetence, or as an expression of the lack of benevolence, or as a combination of the two factors. However, regardless of the issue of a proper explanation of the fact, the effects of such misapprehension are today very visible and easily discernible. Additionally, it is now clear which directions future developments are likely to take, which is the theme of my relatively brief fourth reflection.

 

 

2

Each and every High Representative acting under ‘Bonn’-mandate is caught in a sad and cognitively unsolvable condition.Each and every quasi-justifies his mandate by calling on democratic principles and claiming that the mandate serves the promotion of democracy in BiH. However, each and every high representative has promptly realized that the Bonn mandate cannot be at all reconciled to the principles of democracy including Bosnian-Herzegovinian one. Now, as I claim here, the crucial point to grasp is not only in the principled discord between the mandate and democracy; it is also in the ability of the mandate to prevent effectively development of democracy, that is, to act counter to all the key components of democratic ethos: if we envisage such an ethos as an assembly of virtues, rules, ideas and practices that support evolution of democracy, the very Bonn mandate has an adverse and discouraging effect on such an assembly. It may sound somewhat paradoxical, but is nonetheless true that the Bonn-mandate relies on a pre-modern communist mentality that marks a significant portion of Bosnian-Herzegovinian political elite and citizens, with notable exceptions of course; and additionally, such a mandate both reinforces and regenerates such a mentality.

A few examples suffice to bring home the key point. Drawing on July 2000 BiH Constitutional Court (to which a majority can be normally formed only if foreign benches tilt the balance) decision, in April 2002 High Representative issued a decision imposing amendments on the BiH Federation Constitution. The decision was declared at the end of his mandate, which is why it was wittily nicknamed ‘an airport decision.’ Now, from the perspective of democratic ethos, and regardless of possible ethnicity-related queries (let us forget about the issue of, for instance, Croat constitutionality), it is obvious that the decision cannot be reconciled with democratic ethos. In a normal democracy, such a decision should be drafted, debated, redrafted, formulated, and ultimately passed by parliament itself. Perhaps a parliament would decide not to adopt such a decision because it enjoys the right of its own interpretation of a constitutional frame. However, even if the parliament decided to accept a decision by a constitutional court as binding on all, it would be its sovereign right to discuss and interpret the decision on its own terms. A functional democracy can be contrasted to a non-functional one due to the ability of the former to pass a decision based on a consensus or on some other method of democratic decision-making preceded by a free, open, fair, and transparent public deliberation, which can thrive only on the foundation of democratic ethos. A parliament that simply has to adopt an imposed decision, which was not even straightforwardly deduced from the said July 2000 constitutional court decision, is not a democratic parliament. Contrasting a normal, democratic process of amending of a constitution with the way the HR simply announced the amendments to the Republica Srpska and the Federation constitution, one can with no effort draw the conclusion that the BiH has nothing to do with democracy. Constitutional amendments were imposed, but, from the angle of democratic theory and practice, no amending took place.

Petritsch was well aware of this: after his departure from the post, he used to state publicly that introduction of democracy into BiH was tried by non-democratic means, and that he personally sensed sadness about the country every time he had to impose a decision. Putting aside the emotional tone that may be misleading, his statement on non-democratic introduction of democracy demarcates successfully one fundamental and inevitable aporia involved in the institution of Bonn-powered High Representative.

Or, think of the notorious example of today’s High Representative’s, V. Inzko’s, decision to suspend the decision by BiH Central Election Commission (which was too established by a decree of Paddy Ashdown) in March 2011. De facto Inzko has blocked a democratic process. One can compare this with the blocking of a mechanism which is a part of a larger institutional-democratic package, and which makes sense only as a part of the package. Following the decision by the Central Election Commission, some other bodies were supposed to give their own view of the problem. This means that Inzko not only blocked, and annulled the results of, a single body; he effectively blocked the work of several other bodies that naturally function and operate within a larger democratic whole which reminds them unceasingly of the importance of democratic accommodation, compromise, and a sound judgment. In other words, Inzko’s decision deprived the local institutions of a potentially important and useful exercise in democratic and constitution-based methods and procedures of decision-making.[vii]

This leads us to the next, and equally important, issue: Bonn-powered High Representative not only adversely affects the development of democratic ethos within the BiH; he also has a detrimental, and in fact a highly preventive, effect on the rule of law in BiH. The body that is freed from the commitment to base its decisions on the laws binding on all simply cannot be beneficial to the rule of law, not only in BiH but in any other country. The body embodies an example of the license to act arbitrarily, to operate outside the legal frame, or to dismiss such a frame whenever it suits one. For instance, if one third of 17 amounts to 5 in a country, as aforementioned Inzko’s decision implied,[viii] then one could hardly believe that the population of the country is motivated to act in accordance with the law – the very content of the law has been treated with disdain. Hence the connection between the ‘logic’ of High Representative, on the one hand, and discouragement to respect and implement the rule of law, on the other, can be easily established. Examples are many, but here I will provide two that pertinently illustrate my key contention. Take the cases of removal of democratically elected officials: in a normal country that operates under the rule of law, such removal needs to take place in the form of a relatively complicated cluster of legal and institutional procedures. As a minimum, the targeted official ought to enjoy the right of a fair hearing; s/he could at least utter a number of propositions to try defending himself; or, in a more modern and evolved forms of democratic government, he could be assigned a pro bono counselor. In Bosnia-Herzegovina such developments do not take place when it comes to the decisions by the HR to dismiss or remove, or ban, officials not only from official posts, but also from participating in political life in any other form. Thus one can easily recognize that such HR’s decisions involve a flagrant violation of fundamental human rights.

For instance, the decision to ban Edhem Bičakčić in 2000 was passed simply for political convenience. After the owner of Dnevni Avaz, a Bosnian influential daily, changed his political course and put his daily into the service of Social-democratic party, which then international officials (like in 2011 within the BiH Federation) misrepresented as a potential source of true multi-ethnic democracy in BiH, Bičakčić called for judicial inquiry to check the tax-payment history by the Avaz owner. This is all that High Represented needed to ban Bičakčić due to ‘the undermining of DFP.’ It is also interesting to note that the BiH Constitutional Court passed in 2007 the ruling to the effect that such kind of removals from the office by a high representative involves violation of basic human rights. However, by another decree High Representative Schwarz-Schilling declared the ruling nil and void.[ix] Again one can easily see why the High Representative simply cannot be put into harmony with the notion and practice of the rule of law. In order to protect his Bonn-mandate, he has to annul a decision by a judicial summit of a country,[x] but he is not in position to annul it by reasons or through drawing on international human right norms. In fact he makes a mockery of ‘the rule of law’ in BiH, which deserves nothing but a cynical smile and despise.

Now we can move to a third, probably the most important, consequence of Bonn-powered high representation to BiH. It is not difficult to demonstrate, or grasp, that the HR has a very detrimental effect on the very dynamics of conflict within BiH. In a democratic country, the conflict of social, economic, political, or ideological nature is a welcome fact. It is only through the experience of conflict that the ability of a democratic system to respond to conflicts peacefully and constructively can be tested. Of course, one of fundamental prerequisites of such an ability lies in democratic and peace-loving culture generally, or, more specifically, in a culture that promotes dialogue in the sense of a confrontation between some social and political attitudes or ideas in the form of a reasoned debate and an exchange of plausible reasons that aim at compromise or a solution that all parties to the conflict should find satisfactory. However, this kind of dynamics is unlikely in BiH primarily because of the presence of a ‘third’ party that guarantees a temporary stability and that also guarantees that a decision will be made regardless of the ability of the local parties to arrive through dialogue at a compromise-defining solution.

In other words, at least one of the local parties, and possibly all of them, are demotivated by the very presence of HR; they are deprived of a potentially important inner inducement to try through an unmediated dialogue to arrive at locally constructed solutions binding on all the parties to the dialogue and negotiating process. In such a sense, Bosniak political elite carries a special responsibility because, considering the past history of HR’s acting in BiH, they are used to the expectation that HR will continue imposing solutions regardless of their own will to create a dialogical relationship with the interlocutors from the RS or within the Federation. In their eyes, the HR has become a deus ex machina, or ‘Santa Clause,’ as some officials from within the Office of HR cynically call him, who quasi-guarantees the sovereignty and indivisibility of the country, which is a pure fiction.

Following his assumption of ad libitum powers, Carlos Westendorp himself gave the most plastic description of such constellation; as Paul D’Amato quotes, „he [Westendorp] once told a Bosnian periodical that if Bosnia’s elected officials cannot ‘agree about some decisions, for example the passports, the license plates, the flag…I will stop this process of infinite discussions. In the future it will look like this: I will give them…a term to bring a certain decision, that is, to agree about some decision. If they do not, I will tell them not to worry, that I will decide for them.’“[xi] Now we can see in plain sight where the key problem comes from. The parties need not worry where the negotiating process takes them. This means that they are free to engage in the process without a serious commitment or responsibility. This further means that they are all free to continue posing maximalist demands or claims. And, this also means that they need not think of the ways to influence their negotiating partners by reasonable and valid arguments. In other words, this altogether means that HR signals directly to the local parties to continue with their conflict and stall a real progress in the sense of cultivation of the ability to negotiate solutions internally. Their inability to do their job ensures a job to him. This is why the figure of HR has such a detrimental effect on the internal dynamics of conflict within BiH. He simply freezes, and occasionally unfreezes, the conflict while the local political actors and elites make no progress in terms of their fundamental attitudes to the conflict. HR prevents the local parties from developing a crucial, and for democratic ethos indispensable, conflict-related virtue: to recognize in the conflict a chance to accommodate and test dialogically their own cognitive skills in legal-ethical-political realm, without which negotiating cannot be successful.

The conclusion of this reflection leads us immediately to the next that deals with the impact the HR has on the dynamics of a wider conflict which involves not only the local, but also the global actors of the international community.

 

 

3

As Etienne de La Boétie masterfully described in 1549e, every tyrant, every holder of an absolute power, forms a pyramid of influence over those who he rules;[xii] he primarily leans on a small number of supporters and followers ranked lower than he, who exercise an approximately equal amount of effective power. Those followers then lean on a larger number of their own followers or supporters who again exercise an approximately equal amount of power. Such a pyramid extends to the lowest ranks of common people, partisans and peasants, who represent the lowest stratum of society.The lowest stratum is actually the least burdened by the fact of tyrannical power – they do their normal jobs, while the tyrannical power appears to them only in the form of those who occasionally extract or collect taxes. The highest ranked are actually the most burdened by the power: they need to attend to those ranked lower than them, and they also need to follow closely, and sometimes make a wild guess about, erratic changes in the tyrant’s attitudes. Besides, the highest ranked supporters need to display a higher degree of ideological loyalty to the tyrant; hence the nature of the downward influence varies from stratum to stratum; in the middle strata such influence may be based entirely on a kind of tangible interest. Also, one should note that, legitimacy-wise, the strength of influences, from the top of the pyramid downwards, gradually decreases; for those positioned at the lowest ranks, the issue of which supreme power is actually legitimated normally makes no difference. However, for those positioned close to the summit, this issue is of the utmost importance and their bare existence often depends on it.

I quote this part of De La Boétie’s theory of ‘voluntary servitude’ to emphasize the fact that the High Representative to BiH, under the Bonn-mandate, is not a dictator in a classical sense of the word. He is a dictator carrying an additional baggage, or an institution with a legitimating chain of influences that does not extend only from the top to the bottom of Bosnian-Herzegovinian citizenry, but also points upwards to the ranks that actually stand higher than the HR. In other words, the HR is supposed to act along the political guidelines of the PIC, especially of the PIC’s Steering Board that represents the voice of major global powers including USA, UK, Germany, France, Turkey (on behalf of the Organization of Islamic Conference), Russian Federation, and the EU Presidency. Of course, the ideal condition would be one in which the PIC Steering Board members form an inverted pyramid, with the top of the pyramid acting as a hidden source of HR’s actions. Unfortunately, this is not so. The internal relations at the PIC have no discernible geometric shape, and today one can even plausibly argue that the PIC consensus concerning the future status and acting of the HR either unraveled already or is in the process of accelerated unraveling.

Those who followed closely the process of implementing of DFP under the heavy influence of HRs should not be caught by surprise. High Representative was exploited by the American foreign policy makers to take the process of implementing to a direction that was not foreseen by the original wording of the frame.[xiii] Such misguidance of the Dayton implementation, and subsequent violation of both the letter and spirit of DFP, had two essential effects: first, the BiH Federation, one of the two BiH entities, was transformed into an entity with de facto Bosniak majority domination at the central level of government and also in the sense of domination of ethnic representation through the cantonal levels. Secondly, at the expense of entities, the BiH state was given illegitimately additional powers that are originally intended to be exercised by the entities – that is, if one founds one’s legal reasoning on the premise that lex specialis supersedes lex generalis,[xiv] and if such premise effectively guides one’s interpretation of DFP. This process, run primarily by USA with some of its European allies, including primarily UK, was bound to cause a fair amount of friction and disagreement within the EU, and between some EU member states and USA, and also within PIC itself.[xv]

The American ‘mediators’, and de facto instructors to HRs,[xvi] justified this process by allegedly American system of liberal values. They kept claiming that they were supporting Bosnia’s multi-ethnic character, or BiH democracy, or individual rights of its citizens primarily.[xvii] However, their interference has in reality turned a Federation people, Bosniaks, into a fundamentally constituent one, while the other, the Croat, was turned into a ‘constituent minority’ in violation of both the letter and the spirit of DFP; also the American meddling alienated a large portion of the Serbs in Republika Srpska who are aware that the weakening of Srpska’s relative power implies the weakening of relative Serb influence in their role of constituent people to the BiH.

Now, at least from 2006 something interesting started happening. Interventions by HR commence to deepen and aggravate to a higher degree the conflict within BiH, but more importantly, they commence to act as a serious conflict-generator within PIC itself; the original intent, which was to use HRs as a primary means of stabilization of relations within BiH, produced a major side-effect and turned into its opposite; due to HR’s interventions over a longer period of time, a conflict emerged at PIC which then caused the worsening of the conflict within BiH too, which was fully predictable – the BiH parties are fully aware of the PIC members’ attitudes to the problem of implementing of DFP, and they treat some of the members attitudes and positions as both a source of counseling and a promise of at least informal alliance. One should also realize that, as a part of the same process, the figure of HR has been delegitimized: the fictions on which the status of HR depends are increasingly deemed as nothing but fictions. HR is thus increasingly viewed as but a part of the weaponry employed in a global struggle over the DFP implementation that has no inherent ethical or legal validity. Hence, as a part of the same process, it was brought to awareness of many participants and observers that HR is not self-instituted or non-opposable; and that he is neither an ‘immediate executive power’ nor ‘a supreme interpretive authority.’

Year 2006 marks the period of critical juncture. It was the year when Paddy Ashdown, the most aggressive of the high representatives, ended his mandate. Barely a month after the Parliamentary Assembly of the Council of Europe, in June 2004, hailed the fact that the number of HR’s interventions decreased as a sign of evolution of BiH democracy, Ashdown ‘pulled out the gun’ and, by a single signature, removed 60 officials of Republika Srpska at various levels, due to their, as Ashdown explained, ‘lack of cooperation in bringing Radovan Karadžić to justice.’ Such a move was rightly interpreted as an assault on both Srpska and the DFP. The detailed account of the complications that this Ashdown’s measure brought about is unlikely to be published soon;[xviii] however, as already mentioned, at least it has become fully visible that the HR interventions not only aggravate directly the conflict within BiH, but also have an international spill-over effect and threaten to deepen or worsen the conflict at the international level, which then again backfires on Bosnia’s internal relations.

It is important to emphasize that, following the end of Ashdown’ mandate, the PIC Steering Board decided to start preparations for closure of the Office of HR, that is, of the end to the Bonn mandate. The decision was explained by the thesis that it would be in the interest of all for BiH to take responsibility for itself and that, following the period of Dayton implementation, the time has come for the period of Euro-Atlantic integration.[xix] The decision was passed officially on June 23 2006, and I am almost certain that the Russian Federation threatened secretly with the use of veto at the UN Security Council against appointment of another high representative due to not only Ashdown’s massive ban, but also to the way DFP was implemented by that point. It was probably agreed behind the closed door that the start of the process of closure of the Office of HR would be one of the key conditions for the Russian non-use of veto powers at the UN Security Council. The problem is that, prior to his departure in February 2006, Ashdown persuaded the then chief EU negotiator for EU enlargement to add a special condition to the conditions BiH needs to meet to qualify for the stabilization and association agreement with the EU: the creation of a unified police force of BiH with the mandate of operating throughout the BiH, which has no foundation in the wording of DFP.[xx] In other words, Ashdown thus managed to re-generate once again both the conflict within BiH and the conflict within PIC itself.

Eight months after the decision to prepare for the closure of HR Office, and a few months before the departure of the HR who was expected to mark the end of the era of ‘international protectorate’ in BiH, in February 2007 the PIC Steering Board postponed the decision, and the mandate of HR was officially extended for the period of over a year, by June 2008, at which point the HR Bonn-mandate should have been really ended. Now, in the communiqué of the PIC Steering Board from February 2007 one can easily recognize the fact that international consensus supporting the Bonn-mandate of HR has in fact unraveled.[xxi] Predictably the Russian Federation adds a dissenting opinion to the document. It signals officially and clearly that, in its eyes, no further consensus on the need for HR is formed; however, it does not signal such a position by a head-on confrontation or by, for example, its departure from the PIC Steering Board, but by a verbal message within the given diplomatic frame.

One should also give consideration to two equally important developments: on two occasions, in 2007 and 2011, Republika Srpska succeeded to delegitimize some acting of HRs: in the first case, it managed to block Lajčak’s 19 October 2007 decision on a change of ethnic quota required to pass an official veto at the Council of Ministers and at the BiH Parliament;[xxii] in the second case, in 2011 Dodik managed to evade the authority of HR Inzko and to reach an independent agreement with Catherine Ashton, the EU special representative for foreign and security policy, concerning the need to reform judicial bodies at the BiH level.

I will draw this reflection to a close by an analogy. In his groundbreaking contribution to modern theory of sovereignty from 1576, the Six Books on Republic, Jean Bodin gives an account of an old Tatar people’s custom and ritual of appointment of their king: „….when their big king passes away, the prince and the people who enjoy the freedom of election choose one among the king’s kin as they will, except that the person has to be a son or a nephew; and then they put the person in a golden throne and address him in the following words: ‘We ask you, and beg you, to be our king.’ To this the king replies: ‘if this is what you demand from me, then you ought to be ready to do as I command: when I command that one is to be executed, one has to be executed straightaway, and the whole kingdom needs to be placed in my own hands.’ To this the people reply: ‘let is be so’, and then the king continues as follows: ‘As it comes from my mouth, my word shall be my sword’, to which everybody submits. Following this, they grab the king, take him off the throne, and then place him on a wooden board on the soil, after which the princes tell him the following: ‘Look upwards and get to know God, and then look at the wooden board on which you are now seated. If you rule well, you will get everything you desire. Otherwise, you will fall so low and be barren so of everything that you shall not be even in position to keep the board on which you are now sitting.’“[xxiii]In other words, in the Tatars’ case, the king’s appointers were reminding the king of the dependence of his mandate on his adherence to moral standards. King’s legitimacy is constrained by his good, or bad, rule. The violation of moral standards entails the King’s fall, and it is a fall to such a low level, as marked by the wooden board that probably symbolizes the possibility of total impoverishment, that an average king’s subject cannot experience it at all.

Today’s status of Bonn-powered High Representative to BiH should be compared with the status of the Tatar king who has, due to violation of moral standards as outlined by DFP, fallen lower than the ritual wooden board. However, the loss of the status is not translated yet into a concrete action, and is not conveyed yet to the ‘King’ himself. The consensus has unraveled, but the realization that it has indeed unraveled has not yet assumed the form of a serious and irresistible demand that the King be dethroned now. What are likely developments in the near future?

 

 

4

Viewing the relations from the perspective of the problem of Bonn-powered HR for BiH, further developments may take three directions:

a) The status quo may be retained for an indefinite period of time. This means that HR continues exercising authority under the Bonn mandate, which allows him to interfere arbitrarily with the legal-political landscape of BiH, despite the unraveling of the consensus that should support his mandate. For the reasons explained in the second reflection, this direction is undesirable and unviable from the perspective of development of BiH as a complex multi-ethnic democracy. For the reasons explained in the third reflection, it is undesirable from the perspective of global politics too. It is clear now that further interventions by the HR, especially in the domain that overlaps with the Republika Srpska interests, are likely to generate further discord and friction at the international level, especially between the Russian Federation and USA, but also between the EU and USA. This is also bound to backfire on already fragile relations within BiH itself. In such a sense, the recent establishment of the connection between the problem of Ukraine and the problem of BiH, as voiced in some press by some former high representatives, is especially disconcerting. It unashamedly aims at resurrection of Cold War atmosphere and misrepresents the Russian Federation as a cause of global troubles.

b) The simplest solution would be for the HR himself to hand back his mandate just as, prior to the Bonn conference, he assumed the mandate of his own. Then, at some future conference, the PIC could welcome such a development. This is the direction that I find most reasonable and potentially most beneficial for BiH itself. I should as well emphasize that such a development does not exclude the possibility that the HR continues with his engagement in BiH in his original, narrow, pre-Bonn mandate and role, as a key assistant to the peace process or as its chief facilitator or coordinator of international agencies. However, some complications may take place even as a part of this potentially optimistic scenario. For instance, who should formulate the decision by the HR on termination of his mandate, and how? This is an open and difficult question. Furthermore, based on the decision concerning the termination of the mandate, one could rightfully pose the question of how is it possible that the same peace agreement seemingly justifies both the narrow and the broad mandate of the HR. However, regardless of such questions that concern more or less consequential technical issues, one effect of the departure of Bonn-powered HR may really be troubling in a practical sense as, following his departure, the internal conflict may become more severe and lead to further resentment and disagreements also at the international level. Such likely worsening of the conflict in the post- ‘Bonn-powered HR’ era is due to two crucial reasons: first, at least one of the BiH parties is likely to ask for, or initiate, or press for a revision of all the key decisions by high representatives that expanded the central powers of BiH; secondly, it is clear that, from the beginning of the Bonn mandate till today, the relations between domestic actors have not improved, but worsened considerably. The time that could have been spent on reconciliation and recovery of trust, and most importantly, on development of democratic culture of dialogue between the local parties, was instead spent on HR’s interventions as well as on internal clashes, protests and slow-downs surrounding such interventions. In other words, it is quite possible that, following the return of HR to pre-Bonn period, the relations within BiH deteriorate to such an extent that the parties come close to the brink of a war. Here I will not further discuss the problem of wise preventive acting vis-à-vis such a possibility; I will only express my opinion that the concerned members of international community have a substantial capability to provide for a preventive mechanism and block the eruption of armed violence of a lower or higher intensity within BiH.

c) It is possible that further developments will not take the direction of urgent departure of Bonn-powered HR, following which a further evolution of relations would be left entirely to the domestic parties; perhaps one could opt for a conditional closure of the Office of Bonn-powered HR, a closure that will be conditioned by a successful international conference resulting in an agreement on replacement of the Dayton Constitution with a different one. In other words, one could safely assume that, following all the interventions by HRs that inflated DFP and made it unsupportable by major local actors, it would be dangerous to leave the post-Dayton entirely in the hands of those actors. Then perhaps some new principles of a future and more just constitutional blueprint for BiH will be agreed starting with the assumption that BiH should be primarily founded on its own sources of legitimacy, not on international pressure or guarantee. Perhaps such an international conference could deliver a major result based on a consensus on principles. Additionally, a sincere offer of EU membership could be added as a key ‘carrot’ that would motivate the parties to reach the new consensus on new principles. However, the devil is in the detail, and this direction is as risky as the others; here I simply address, as a possibility, another strategy of formulating a global response to the problem of envisaging the future of BiH without a Bonn-powered HR.

In the given conditions, I do not think that I am able to offer a more exact prediction. Personally I would prefer the option b to c, and c to a. If I decide to consider primarily historical facts, my prediction is likely to be gloomy and discouraging; if I, in contrast, hold fast to the assumption that rational and peaceful control of international relations and global politics is probable, I tend to lean towards an optimistic prognosis. For a while, perhaps we should just settle for the sketchy trio of expectations that leaves no room for major surprises.

 

 

[i]Tralau, J. (2007), ‘Leviathan, the Beast of Myth: Medusa, Dionysos, and the Riddle of Hobbes’s Sovereign Monster’, in: The Cambridge Companion to Hobbes’s Leviathan (ed. P. Springborg), Cambridge: Cambridge University Press, pp. 61-81, p. 74

[ii]For more detail see Pehar D. (2012), ‘Bosna i Hercegovina kao veleposlanstvo Visokog Predstavnika – republikanska kritika’, Političke analize (Zagreb) 10, pp. 3-9; available also from http://www.fpzg.unizg.hr/docs/PA/Pehar_tekst.pdf (an English version available from http://www.academia.edu/935704/Bosnia-Herzegovina_as_the_Embassy_of_the_High_Representative_A_Republican_Critique); see also an excellent analysis by Baros, M. (2010), ‘The High Representative for Bosnia and Herzegovina: A Requiem for Legality’, European Journal of International Law, http://www.ejiltalk.org/the-high-representative-for-bosnia-and-herzegovina-a-requiem-for-legality/ (accessed on 27 September 2014)

[iii]See Schmitt, C. (2004), Legality and Legitimacy, Durham & London, Duke University Press, translated by J. Seitzer, pp. 31-35

[iv]Related to this, in late 1920s Carl Schmitt and Hans Kelsen famously debated the question ‘who ought to be the guardian of constitution?’; Kelsen advocated the view that such ‘privilege’ ought to be attributed to constitutional/supreme court, the supreme legislative body; Schmitt supported the view that it ought to be attributed to the president as the supreme executive power; see, for example, Schmitt, C. (1929), Der Hüter der Verfassung, Archiv des öffentlichen Rechts, Neue Folge 16 Band, Tübingen: J.C.B. Mohr (Paul Siebeck). For  my own take on the issue of ‘ultimate constitutional interpreter,’ see Pehar, D. (2014), ‘Ambiguity, Leviathan, and the Question of Ultimate Interpreter,’ Prolegomena 13:1, 21-44, available from http://hrcak.srce.hr/121954 (accessed on 27 September 2014)

[v]Westendorp, C. (1997), Interview, SlobodnaBosna (Sarajevo weekly), 30 November, pp. 5-7

[vi] Hence the key thesis of this essay is opposed to one advocated by Henda, K. (2012), ‘What role for the EU Special Representative in Bosnia and Herzegovina after Lisbon?’, Centre for Southeast European Studies, University of Graz, Working paper no. 2, http://www.suedosteuropa.uni-graz.at/sites/default/files/publications/WP2%20Henda%20Sept%202012.pdf (accessed on 27 September 2014); I consider Henda’s arguments as based fully on the ideology of liberal interventionism – for example, on p. 30 he frames the debate between those who support the Bonn-powered HR and those who oppose such HR as a debate between ‘Bosno-philiac’ and ‘Bosno-phobic’ views. His classification puts me into the camp of ‘Bosno-phobiacs’ that includes David Chandler, Robert Hudson, Gerald Knaus, Miroslav Baros and Matthew Parish, among others.

[vii] See also Kostić, R. (2011) ‘Education through regulation? External intervention in domestic politics in post-Dayton Bosnia and Herzegovina’, in: Fjelde H., Höglund K. (eds.), Building Peace, Creating Conflict? Conflictual Dimension of Local and International Peacebuilding, Nordic Academic Press, pp. 105-129; it is interesting to note that in endnote 29 (p. 129) Kostić emphasized the following: “During his lecture and visit to the United States Institute of Peace on May 10 2011, the HR Valentin Inzko announced that he was to withdraw his decision upon his return to BiH in order to normalize the situation in FBiH. The media in BiH broadcast this news, yet upon his return the HR accused the newspapers of misleading the public, despite the fact that his USIP lecture is a matter of public record with a recording available online (Dnevnik 2011).” Unfortunately today (27 September 2014) there is no audio-record of Inzko’s lecture at the USIP-webpage (but on the webpage there is a link to the record!).

[viii] This is so because Inzko’s March 2011 decision supported the party that formed the Federation government based on 5 Croat votes in the Federation House of Peoples, despite the amended constitutional requirement to form a government based on no less than one third of 17 Croat representatives.

[ix] Parish, M. T. (2007), ‘The demise of the Dayton protectorate’, Journal of Intervention and State Building, Vol. 1, special supplement 1, pp. 11-23, p. 16; the essay also available at http://www.matthewparish.com/pdf/JISB%20BOS%203%20-%20Parish.pdf (accessed on 27 September 2014)

[x] In 2011 one official from the Office of HR told me that “the HR would soon start permitting the BiH Constitutional Court to revise his decisions;” the official gave me no hint of his possible realization that such a permission is fundamentally irreconcilable with the theory and practice of the rule of law.

[xi] D’Amato, P. (1999), ‘Bosnia: Model for a New Colonialism’, International Socialist Review 8, http://www.isreview.org/issues/08/bosnia.shtml (accessed on 27 September 2014)

[xii] De La Boétie, E. (2001), Rasprava o dobrovoljnom ropstvu (sa pogovorom C. Leforta) (“The essay on voluntary servitude; with a foreword by C. Lefort”), Beograd: “Filip Višnjić”, Serbian translation by I. Vejvoda, pp. 44-47

[xiii]See my previous publications at www.idpi.ba ; this fact was documented many times – one can discern it through Jim O’Brien’s public statements, and, not less importantly, through a statement by Paddy Ashdown (Dnevni Avaz daily, 16 May 2009); see also Adams, J. (2014), ‘Bosnia: Stabilization Stalled in Negative Peace,’ Alliance for Peacebuilding, http://buildingpeaceforum.com/2014/09/bosnia-stabilization-stalled-in-a-negative-peace/ (accessed on 27 September 2014)

[xiv]According to lex specialis, the small number of the powers of central BiH Government, under the Dayton Constitution, are put in precise terms; the remaining powers are originally placed in entities; in the course of Dayton negotiations, and at the start of implementation of DFP, Holbrooke emphasized that the Dayton Constitution forms a community based on the following formula: two strong entities, one loose central government. Moreover, under the Dayton Constitution, potentially additional central powers, for instance, those that have something to do with ‘international legal personality of BiH’, are put in general and vague terms, and are thus a subject to interpretive controversy and conflict; hence the latter have the status of lex generalis.

[xv]For a more recent example, see Brunwasser M. (2011) ‘Bosnia flounders as powers argue,’ The New York Times 27 June, http://www.nytimes.com/2011/06/28/world/europe/28iht-bosnia28.html?pagewanted=all&_r=0 (accessed on 27 September 2014)

[xvi]High Representative with a broad Bonn-mandate is a necessity in the condition when one aims at imposing an interpretation of a peace treaty that deviates from both the letter and the spirit (or, more precisely, the reasons) of the treaty; the Bonn-powered High Representative, who adheres to the letter and spirit of the treaty, is not a sensible category because, in the condition of his adherence to the letter and spirit of DFP, the High Representative should not need the Bonn-authority as his pre-Bonn authority would be sufficiently safeguarded by his reasons and reason-supported interpretations. One of the most important facts about the decrees by Bonn-powered High Representative is in their complete lack of explicitly formulated, understandable, and generally acceptable reasons of interpretations.

[xvii]This is simply a misrepresentation of facts – whoever is aware of political values that inspired the American founding fathers is also aware that the American Constitution was founded on the need to prevent two major troubles: a potential tyranny of a majority over a minority; and a potential concentration of excessive powers within a single governmental body that would replicate a ‘tyrant’ or a ‘monarch.’ The notion of ‘BiH constituent peoples’ matches perfectly the first aspect, whereas the second one, which is also supported by the theory of inalienable rights and liberties from the Declaration of Independence, cannot be at all brought into harmony with the institution of Bonn-powered HR.

[xviii]As to the heat this created within the Parliamentary Assembly of the Council of Europe, see Logan M. (2004), ‘Examining the High Rep’s Mantle’, Transitions Online, 21 July

[xix]http://www.ohr.int/pic/default.asp?content_id=37503 (accessed on 27 September 2014)

[xx]Parish (2007, p. 19)

[xxi]http://www.ohr.int/pic/default.asp?content_id=39236 (accessed on 27 September 2014)

[xxii]Parish (2007, pp. 20-21); see also Borić, F. (2008), ‘Spašavanje diplomate Lajčaka – slika i prilika odnosa međunarodne zajednice prema BiH,’ (Saving diplomat Lajčak – a paradigm of international community’s attitude  to BiH) Status 13, pp. 52-56.

[xxiii] Bodin, J. (2002), Šest knjiga o republici (« Les Six Livres de la Republique »), Zagreb: Politička kultura, Croatian translation by Divina Marion, p, 36

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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