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Multiethnic reflections on an unjustifiably suppressed and repeatedly violated Dayton agreement

Multiethnic reflections on an unjustifiably suppressed and repeatedly violated Dayton agreement

Multiethnic reflections on an unjustifiably suppressed and repeatedly violated Dayton agreement
August 14
09:23 2014

Author: Dražen PEHAR

Summary

 

This essay deals with an unfairly neglected document, the Dayton Agreement on Implementing the Federation of Bosnia and Herzegovina, signed at Dayton on November 10 1995. The first two parts of the essay reproduce the key provisions and the character of the agreement, and also the agreement’s key implications. The third part of the essay aims to problematize the process of implementation of the Dayton framework for peace in light of the agreement on implementing the Federation. Finally, the fourth part issues a number of recommendations at several levels as a part of an attempt to clarify the ways in which the situation in Bosnia-Herzegovina could be amended. The key thesis of the essay reads that the Dayton framework for peace has been implemented in a wrong way, and that the Croats, as a constituent people to both the Federation and the BiH, have suffered a major part of legal-political harm through the process of implementation; this, however, has also significantly reduced the potential of BiH to figure truly as a multiethnic democracy.

 

 

Introduction

 

Dayton peace talks for Bosnia-Herzegovina produced two key documents: one of the two assumed a central place in the attitude of public, diplomats, international representatives as well as local implementers of the Dayton framework for peace. However, the other is talked about much less frequently and with much lower degree of consideration and respect. The latter is called ‘Dayton agreement on implementing the Federation of Bosnia and Herzegovina’ signed on November 10 1995 at Dayton. In this essay I explain the contents of the agreement, its key implications and also the reasons for its removal from public space or consideration. Somebody, obviously, was not interested in the long, 20-year period of implementing of the Dayton to give a higher amount of consideration to the document which is, however, in its importance and weight complementary to the Dayton Framework for Peace.

‘Dayton agreement on implementing the Federation of BiH’ (I use here acronym DAIF throughout) has its official number under which it was archived at the UN General Assembly: UN General Assembly A/50/810-S/1995/1021, with the last three designations (S/1995/1021) used more often, for instance when the UN Security Council refers to the agreement. Hence it is an agreement that forms a part of the international law to the same degree as the Dayton framework for peace. Many UN SC Resolutions refer to DAIF and express the council’s formal commitment and support to the provisions of the agreement: for instance, resolution 1031 (1995) of December 15 1995, 1088 (1996), resolution 1423 of July 12 2002, resolution 1722 (2006), then the 1845 of November 20 2008, up to the resolutions 2074 (2012) and 2123 (2013).

 

 

Fundamental provisions and the character of the agreement

 

Let us remind ourselves of the basic facts about DAIF. This agreement was drafted and adopted in a specific political context: namely, the Federation of BiH was, as widely known, formed through the Washington Agreement and prior to the formation of the Dayton Bosnia-Herzegovina (BiH).[i] At Dayton the key driving problem of the negotiations was to formulate a constitutional frame for BiH in accordance with its new, two-entity constitutional outline that was adopted already in September 1995. This implied that the frame of the Federation of BiH needed to be adapted to the new frame for BiH; in other words, it was necessary to formulate some concrete steps to accommodate the fact of the constitutionally-legally established Federation of BiH with the new context, that is, the Dayton constitutional frame for entire BiH.

That is why DAIF was signed by those parties who were instrumental in the constituting of the Federation of BiH itself: Alija Izetbegović, in his role of the President of Republic of BiH, Krešimir Zubak, in his role of the Federation President, Haris Silajdžić as a prime minister of the BiH Republic Government,[ii] and Jadranko Prlić as a deputy prime minister of the BiH Republic Government.[iii] Additionally, the agreement was signed by the Croatian President Franjo Tuđman as a party who “endorses the provisions of this Agreement and shall assist in its full implementation.” The witness-parties are represented by four signatories: Ambassador Ischinger on behalf of the Federal Republic of Germany, Ambassador Holbrooke on behalf of the USA, Ambassador de la Pena, on behalf of Spain in its then role of the EU presiding country, and Hans Koschnick, the EU Administrator of Mostar. There is no doubt that the signatories signed on behalf of the institutions attached to their names; however one should also have in mind that they acted also as representatives of some other parties, and institutions, that the agreement refers to and that carry, or ought to carry, the main burden of its implementation.

What are DAIF’s key provisions, its basic content? The fundamentals of the agreement are established in its preamble, in ‘General Principles’ that carry predominant weight in the interpretation of the agreement:

“The complete establishment of the Federation of Bosnia and Herzegovina is an essential prerequisite for peace in Bosnia and Herzegovina. Without a strong and fully functioning Federation, as one of the two constituent entities of Bosnia and Herzegovina, the proximity talks in Dayton cannot result in a lasting peaceful settlement.

Twenty months after the adoption of the Federation Constitution, the process of strengthening the Federation and building trust between its constituent peoples has still not produced satisfactory results. We, the undersigned, have therefore agreed to radical steps to achieve the political, economic and social integration of the Federation.”

The four provisions define the key purpose of the adoption of the agreement. Additionally, in order to achieve the key purpose, the following two paragraphs of the agreement define some lower-order purposes, or auxiliary aims, that are envisaged as a means to achieve the key purpose; the two paragraphs define the commitments undertaken by the parties to achieve actually the key purpose of the agreement:

“The responsibilities and the organization of the Government of the Federation and the Government of the Republic of Bosnia and Herzegovina must be separated. While working together in a spirit of cooperation for the benefit of the population, neither government may interfere in the exclusive competencies of the other government. Without prejudice to the continuing sovereignty and territorial integrity of Bosnia and Herzegovina, the Government of the Republic must now transfer functions to the Government of the Federation in accordance with the Federation Constitution.

The Government of the Republic must retain only those functions that enable it to act as the government of the internationally recognized state of Bosnia and Herzegovina, in accordance with the Constitution of Bosnia and Herzegovina developed during the proximity talks in Dayton. All other functions will be transferred to the Government of the Federation. In parallel, the existing civilian authorities and their organs in the areas of the Federation controlled by the HVO must now transfer all their functions to the Federation organs and be dissolved.”

Hence it is in its fundamental principles that DAIF refers to the Croat Republic of Herzeg-Bosna (HRHB), because the republic is the set of institutions to which ‘civilian authorities….in the areas of the Federation controlled by the HVO’ refers. In such a sense both Zubak and Prlić act not only as the representatives of the Federation and the BiH republic, but also as representatives of the HRHB. It is only under such an assumption that one can properly interpret the provision to the effect that the two undertake the commitment to ensure the transfer of authority from the HRHB to the Federation institutions. As the partner-party undertakes some commitments too, the party is in more precise terms defined in paragraph A3 of the operational part of DAIF (‘Decisions’): “The Government of the Republic shall keep those functions which enable it to act as the government of the internationally recognized state of Bosnia and Herzegovina. All other civilian functions of the Government of the Republic shall be transferred to the Government of the Federation within one month after adoption of this legislation. In addition, all functions of existing local civilian authorities and organs in the areas of the Federation controlled by the ARBiH shall be transferred to Federation institutions, and these authorities and organs shall be dissolved one month after adoption of this legislation.” This means that neither Izetbegović nor Silajdžić act only on behalf of the BiH Republic; they, for the purpose of this agreement, act also as representatives of the authorities in the areas controlled by the Army of the BiH Republic.

If we envisage the sources of authority, or of state-constituting powers, as some points in space, here is what the DAIF foresees: from one point the state-constituting powers are transferred to a middle point; the existence of the latter depends on the transfer of the same kind of powers from a third point to the middle one. It is assumed that the third point, at the time of signing, enjoys a ‘surplus’ of powers which (the extent of those will be defined shortly) has to be transferred to the middle point. Additionally, it is assumed that on its own part the first point has to transfer all its powers to the middle point; but it is also assumed that the first point will, together with the third one, participate in those powers that remain after the transfer of powers to the middle point. This assumption explains why paragraph F of the operational part of DAIF addresses the issue of the agreements concerning the appointment of ambassadors. In simple terms: HRHB transfers its powers both to the Federation and to the state level as defined by the Dayton Constitution – of course, the said powers differ from the Federation ones; ‘Muslim’ authorities, on the other hand, transfer some powers to the Federation, that were previously considered as the powers of the BiH Republic, and they also retain some powers in accordance with the Dayton definition of the central, state-level (in which both entities participate, as stipulated by the Dayton constitution to which DAIF explicitly refers). DAIF explains such mutual transfer of powers (and their retention to an extent) in terms of a clear separation of powers – one government (the state level) must not usurp the powers of another government (the Federation one); i.e., the former must not interfere with the powers within responsibility of the latter, and vice versa.

We can immediately enumerate the powers to be transferred: ‘Muslim authorities’ and the HRHB ought to transfer the following powers to the Federation level: Defense, Internal affairs, Justice, Finance (budget, tax administration, customs collection), Energy and industry, Traffic and communications, Commerce, Agriculture, Education, science and culture, Refugees, displaced persons and social policy, Health, and City planning, resources and environment. However, one should have in mind that this does not mean that such powers have to be transferred to the central government of the Federation; they ought to be transferred to the Federation in accordance with the Federation Constitution – if the constitution stipulates that the Federation cantons are responsible for the matters of education, then the powers ought to be transferred to the level of cantons.

At the state level (former ‘Republic’), according to DAIF, the following powers are to be retained: Foreign policy, Foreign trade, Customs policy, Common monetary policy, Finance (Republic budget), Immigration regulation and Republic citizenship, International criminal law enforcement, Common telecommunications, Air traffic control, Civilian coordination of the activities of the armed forces in the whole territory of Bosnia and Herzegovina. These are exactly those powers of the state-level BiH as foreseen by the Dayton Constitution (Annex 4, Article 3.1). It is also important to emphasize that DAIF foresees continuation of both Army of Republic of BiH and the HVO, which is stipulated in the following terms: “the division of responsibilities as set out in paragraphs 5 and 6 above shall not diminish the military authority of the ARBiH or the HVO.”

An attentive reader must have noticed that it seems as if I smuggled the term ‘Muslim’ into my analysis. However, I have simply taken over the terminology used by the US State Secretary Christopher while welcoming the signature ceremony of DAIF.[iv] In his address Christopher emphasized two facts of essential importance for the understanding of the agreement: first, “The Federation is an essential building block of peace in Bosnia- Herzegovina as a whole. In the peace agreement we are discussing, the Federation will be one of Bosnia’s two constituent parts. For a settlement to endure, the Federation must be functioning and strong. A year and a half ago, the United States helped to mediate the agreement that created the Federation. That agreement saved countless lives by ending the fighting between the Bosniac and Croat communities of Bosnia- Herzegovina.” Secondly, “The agreement finally gives the Federation the authority to govern effectively. The central government of Bosnia-Herzegovina will keep the powers it needs to preserve the country’s sovereignty, including foreign affairs, trade, and monetary policy. It will transfer most of its other responsibilities, including police, courts, tax collection, health and education to the Federation. The new structures the agreement creates will replace all of the separate local Croat and Muslim authorities on Federation territory.”

Also we need to emphasize the fact that, in its basic principles, DAIF refers to ‘constituent peoples of the Federation.’ In other words, it is clear that both the American mediators and the parties to the agreement are aware of the fact that the DAIF is an agreement between the constituent peoples of the Federation of BiH in the shape of an agreement between the representatives of the peoples. The peoples concerned are both Croat and Bosniac people as two constituent peoples to the Federation, and also of Bosnia-Herzegovina, to which a third people is added the representatives of which, however, have not taken part in the creation of the Federation or the DAIF.[v] Hence from a formal and jurisprudential point of view, it is fully clear that the persons who signed to the DAIF in fact play a triple role: for instance, Krešimir Zubak signs the agreement in his role of the Federation President, in the sense of an institution that remains to be built, and also in his role of the representative of the HRHB, as a previous and gradually ‘diminishing’ institutional role, and, last but not least, also in his role of a legitimate representative of the Croat people, as a people constituent to the Federation, in the sense of a constitutional-democratic role. The understanding of the interrelationship between the roles is of critical importance for the understanding of the DAIF itself. Zubak acts primarily as a representative of the constituent people that, in the sense of a political community, can consume, or materialize or safeguard their rights in several ways. HRHB is one way of safeguarding of such rights, but it is not the only one. DAIF stipulates that, in the future, those rights will be implemented within the Federation as a community composed of two equal and equally constituent peoples who enjoy equal rights including the rights to democratic representation, to legislation, to protection of peace and security, and to the regulation of their shared relations to some third parties.

 

 

Key implications

 

Let us now look closer at the key implications of this agreement. What does adoption of the agreement imply for both parties and also for the Dayton framework for peace in its entirety?

  1. HR HB has been recognized as an indirect source of constitutional powers. It is not viewed as a direct source – the only direct source can be in a sovereign or constituent people. DAIF clearly says that some civilian government powers ought to be transferred from the HRHB to another body under some conditions. Hence the key commitments are defined both by the body (HRHB) that endows another body (Federation) with its state-making powers as well as by the powers that the endowed body (Federation) ought to possess, in contrast to the central governmental powers as harmonized with the Dayton constitution.
  2. The primary source of such constitutional, or state-making, powers is not in the HRHB as such, but in another fact, which is the fact of constitutionality of a people; a people is recognized as a political community to which some rights are attributed in accordance with both constitutional and international law; for instance, the people has the right to elect its own democratic representatives according to some constitutional principles in order to establish a kind of governance that enables the people to live in peace and safety.
  3. The same considerations apply to both the Bosniak people and the Bosniak representatives, and also to the ‘civilian governmental authorities in the area controlled by the Army of Republic of BiH.’
  4. The Federation is a bi-ethnic entity. The representatives of two, not three, peoples have partaken in its establishment, and the two have invested into it their own constitutional powers. The representatives of the Serb people have not taken part in the constitution of the Federation. Hence they cannot be constituent people to the Federation; their constitutional powers are invested into Republika Srpska (and also partly into Bosnia-Herzegovina).
  5. However, this does not mean that the constituent peoples of BiH cannot influence the entity to which they are not constituent. They merely give up their right of constitutionality within the other entity. At the level of the state all the peoples are equally constituent, or co-constituent, which of course depends on an exact definition of the notion of ‘state powers’ or ‘responsibility of the state.’
  6. The authentic understanding of the Dayton framework for peace is as follows: two strong entities, one loose central government.[vi] It is only through such understanding that one can grasp the key reason for adoption of DAIF – to remind, Bosniak-Muslim side ought to return many powers from the state to the entity level. The purpose of DAIF is in a ‘strong and fully functioning’ Federation.
  7. DAIF is a contract, an agreement between two parties – neither party is in the agreement presented as superior one; the agreement is a contract between the peoples that jointly constitute the Federation signed by the peoples’ representatives. Both parties are committed to acting “in parallel”; in other words, both parties undertake some commitments that are nearly identical and that ought to be implemented simultaneously. In the light of the DAIF, HR HB and the Republic of BiH await the same destiny. Also it is important to keep in mind the following: the agreement does not refer to some actions that can be performed fully or be completed and terminated – it is an agreement that foresees a continuous activity; the commitment to retain the powers at the level of the Federation, either at the level of central Federation authority or of a canton, never ceases. This also means that the existence of the Federation as a constitutional frame requires a persistent, continuous effort and investment that feed a potentially never-ending activity.
  8. Apart from some linguistic-terminological detail (DAIF stipulates that, in the case of a conflict of interpretations, its English version is taken as more authentic than either Croatian version or the version in Bosnian language), the parties to the DAIF did not expect some serious problems in interpretation of its key provisions. The agreement itself can be viewed as ‘interpretive’ by its very nature – it clarifies or more precisely defines the powers to be exercised by the parties as well as to be transferred by the parties to different levels according to some agreed rules. DAIF has not foreseen the institution of an ultimate interpreter or a high representative – it has assumed that there would not be any need for such an institution because, according to Vattel’s rule, ‘in claris non fit interpretatio’: ‘when the matters are clear, interpretation is unnecessary.’
  9. Conventional international legal norms apply to the DAIF simply because the agreement is a part of international law. If a party violates an agreement, the other party has the right to demand the return to status quo ante, the state that existed prior to the period of the signing of the agreement.[vii] If a party does not transfer the powers in accordance with the DAIF, this means that the agreement had been violated. Since the status quo ante and the initial positions by the parties are clearly defined, it is quite obvious what, in this context, the right to the return to status quo ante implies, and to which agent or entity does it pertain. On the one hand, the right pertains to Croats as a constituent people and, on the other, to Bosniaks as a constituent people: the return to status quo ante is a return to two separate constitutional and institutional frames: the frame of ‘civilian authority in the area controlled by the HVO,’ i.e. HR HB, and the frame of ‘civilian authority in the area controlled by the Army of Republic of BiH’ as well as of the very Republic in its pre-Dayton constitutional shape
  10. The previous aspect implies fundamental rationality of the signatory-parties as well as of the carriers of the identity represented by the signatory-parties. In other words, one should not assume that the parties signed to a ‘pact of suicide’ in the sense of an agreement that foresees, for instance, disappearance or de-constituting of a constituent people in a legal-political sense. Hence, it is impossible to assume that either party has signed to a contract the implementation of which leads to a loss of a party’s fundamental rights or to elimination of the principle that constituent peoples cannot adopt a frame through which their constituent powers or rights are gradually diminished or disappear altogether.

In a political sense DAIF was also a part of a long process that aimed at a compromise between Croat and Bosniak interests within the BiH. Such compromise was formulated only with enormous difficulties as attested by the statements by leading Croat and Bosniak politicians within the period between the adoption of Washington Agreement and the Dayton peace talks. For instance, Ejup Ganić, a ‘Yugoslav’ member of the Republic of BiH Presidency, and later a Bosniak Vice-President of the Federation of BiH, told a Croatian daily Slobodna Dalmacija (29 December 1994) that, to Muslims, the Federation serves as “a means of preservation of BiH and of a military victory over Serbs.” In other words, like a majority of Bosniak representatives at the time, Ganić viewed the Federation as a temporary military alliance to fight and defeat the Serb people within the BiH, which can hardly be described as a politics aimed at compromise or at establishment of conditions favorable to a negotiated peace. On the other hand, V. Pogarčić, former high-ranked official of HR HB, in a statement to a daily Večernji List (26 August 1995) pointed out that HR HB enabled both the defense and survival of BiH as an internationally recognized state, which is why HR HB has no expiry date.[viii]

DAIF formulated a kind of compromise between those opposed visions – to Croats a kind of federalization was offered, in an area of BiH, by which their both collective and individual rights would be safeguarded even after the dissolution of HR HB; to Bosniaks the preservation of BiH was offered, under certain conditions, provided they gave up their goal of indivisible BiH that could not be federalized or reorganized in accordance with its multiethnic character. Judging at least by the way in which the whole peace-making story was brought to a conclusion at Dayton talks, all parties, including the Serbian one, should have become aware of the compromise they endorsed and consequently decided to implement it in a good faith, with no obstacles or major setbacks and impediments. However….

 

 

The process of implementation of the Dayton framework for peace as a process of violation of the provisions of both DAIF and the framework

 

The ‘international community’ has by the end of 1997 taken full control over the process of implementation of the Dayton framework for peace, to which USA assumed the key role due to a number of factors. In the course of the process, which was steered in the spirit of an enforced and irrevocable interpretations of the Dayton framework through the figure of High Representative,[ix] as a dictatorial power to the BiH, primarily two structures were imposed that undermined and violated directly both DAIF and the general framework for peace. First, special election rules were introduced that enable the Bosniak-Muslims, as a constituent people, to elect the Croats as the Bosniak, not Croat, representatives to the Federation legislative assemblies. In other words, one constituent people has been empowered to influence critically legislative representation of another people, by which the latter’s right of constitutionality has been violated; in this case it is the right of a fair and independent representation of the people to the bodies that the people have co-created through their representatives.

We should immediately notice that one cannot really say that the people lost its constituent or constitution-making powers – this is impossible. However, we can say that the people has been deprived of the chance to implement a right that pertains to them due to their constituent status; in a normal multiethnic community such a right would be guaranteed and safeguarded. Secondly, but as a part of the very same structure, another misguidance of international community was in imposition of an election rule that enables the election of the Croat member of the BiH Presidency by a Bosniak majority vote. Again, the BiH presidency member, who should be representative of a constituent people, is not so representative, or is representative in a wrong way. Also, it does not make sense to expect that a person, who is not representative of a constituent people, be responsible towards the people, or to promote the interests of the people within the BiH Presidency. Now, if such responsibility is not included into the authority of a BiH Presidency member, how to explain the fact that, as a part of the Dayton Constitution, the number and names of the constituent peoples in the BiH Constitution preamble coincide with the collective identities of the members of the BiH Presidency? Additionally, one of the most obvious consequences of such imposed implementation of the Dayton peace accords is in its capacity to turn the BiH’s multiethnic character into a mockery or to deny it utterly.

Also, it is quite easy to explain the sense in which the election rules in force, so-called Barry’s rules (named after US Ambassador Barry who served as a Chief of OSCE Mission to BiH charged with overseeing the election process), directly violate the DAIF. First, DAIF foresees a precise transfer of powers from HRHB-level, and the Bosniak-Muslim Republic of BiH level, to both the Federation and the state level in accordance with the Dayton Constitution. Croats, as a constituent people to the Federation, ought to be represented not only at the Federation legislative bodies, but also at the BiH Presidency that, according to the constitution, immediately reflects a two-entity structure of BiH. It would not make sense to assume that Croats, as a constituent people to both the Federation and the BiH, handed over to Bosniaks their own right of democratic representation at the key state body of executive power, i.e. the Presidency. As the election law does affirm such an assumption, it is in direct violation of the DAIF.

The topic of the election method for the BiH Presidency members carries even higher importance due to the quasi-commitment (to reform its constitution) imposed on the BiH by the European Court of Human Rights through the ‘Sejdic-Finci’ case (22 December 2009).[x] The Dayton Constitution does not stipulate that, prior to elections, the candidates for the post of a BiH Presidency member need to declare their ethnic identification/affiliation. It is the election law that demands such declaration from them.[xi] Hence, the election law is unconstitutional in such regard too, but we need to have in mind that the law was imposed by the international community. In other words, the very demand that the BiH Constitution be radically revised, or reformed, is founded on some flawed, and by the international community imposed, premises.

If one bothers to read the Dayton constitution attentively and carefully, it is clear that the members of the BiH Presidency designated as a ‘Serb, Bosniak, and Croat’, once they are elected, need to figure as the representatives of the three peoples, which means that the provision of the Dayton Constitution dealing with the issue of the composition of the Presidency applies only after the elections and means that the names of the three collective identities pertain to the elected members of the BiH Presidency, not to the candidates. The three presidency members are a ‘Serb, a Croat, and a Bosniak’ in the sense of ‘the representatives of Croats, Serbs, and Bosniaks.’ This also implies that the said provision of the constitution is not discriminatory because both Sejdic and Finci are, in accordance with the Constitution, authorized to run candidacy for the post of a BiH Presidency member, though the current election law prevents them from doing so. Hence, a charitable and reasonable interpretation of the Dayton Constitution will resolve the issues easily and efficiently; and it will also reflect truly the multiethnic character of Bosnia-Herzegovina. Besides, it is quite clear that the approach I advocate is distinctive in its ability to resolve both the ‘Sejdi-Finci’ issue and the ‘Komšić’ issue in a single move. In contrast, the approach by the international community makes those issues increasingly complex, entangled, and insurmountable, and de facto undermines or opposes the functioning of the BiH as a multiethnic democracy.

Since July 2000 the international community introduced another structure which violates both the Dayton compromise and the DAIF. It has done so through its positive response to the appeal submitted by Alija Izetbegovic to the BiH Constitutional Court; the appeal demanded that the BiH peoples get the attribute of constitutionality throughout the territory of Bosnia-Herzegovina.[xii] The Court’s ruling was by a majority of Bosniak and international judges who outvoted the Croat and Serb judges. This strongly indicates that the ruling was politically motivated – the pre-Dayton conflict of political ideas, that gave rise to war in Bosnia, continued into the post-Dayton period and in 2000 infected also the BiH Constitutional Court. Following the announcement of the ruling, local media reported that the then High Representative, Wolfgang Petritsch, held a meeting with the international judges prior to the Court’s ruling; he thereby exerted an undue influence comparable to the influence exerted by the American President Buchanan on the US Supreme Court prior to the passage of the ‘Dred Scott’ 1857 decision, which declared that the practice of slavery was in accordance with the US Constitution and which arguably paved the way to the outbreak of American Civil War. What was the essence of the BiH Constitutional Court decision from July 2000?

Briefly speaking, the decision declares that the Serb people are constituent to the Federation too, and that both Croat and Bosniak peoples are constituent to Republika Srpska (RS). This means that both entities become multiethnic in the sense that all three peoples become constituent to both the entities and the BiH as a whole. However, does the decision make sense in the light of two facts: a small number or Bosniaks and Croats have remained, or returned to, RS; and the number of Serbs who remained within the Federation is roughly estimated to 50,000. Secondly, and more importantly, the Serb people representatives were not asked a question concerning the establishment of the Federation, while neither the Croat nor the Bosniak people representatives participated in the creation of RS except in a very cynical and roundabout sense. In other words, it is clear that the entities, taken individually, are the product of the will of some, but not all constituent peoples. Had one asked the Bosniak representatives within Republika Srpska if they desired the establishment of the entity, they would certainly have voted against it.

To this somebody could reply that constitutionality of the peoples throughout the BiH territory is a matter of justice; a different decision seems to confirm the result of the ethnic cleansing. However, every compromise is partly just and partly unjust from a certain perspective. Both parties to a compromise must accept some concessions that are, from their narrow perspective, unjust; however, such concessions are sine qua non of a compromise. For instance, the Serbs might claim that it was not fair to preserve the BiH which Alija Izetbegović claimed had to be indivisibly sovereign, which was one of the major causes of war; also Bosniaks could say that the very existence of Republika Srpska, one of the two BiH entities, is unjust, etc. In other words, I suggest to those who are willing to think reasonably about the Dayton compromise to pose a simple question: why have the Dayton constitutional structures been formulated in the way they have? What have the parties to the compromise gained through their concessions, and at what kind of moral-political balance have they aimed to make their ‘home’ peaceful and safe?

Additionally, the BiH Constitutional Court decision was passed despite the fact that the thesis, that all three peoples were in a precise sense already constituent throughout the BiH territory, that is, prior to the decision, is nearly impossible to refute. Namely, the peoples are viewed as constituent to their entities, the Serb people to the RS, Bosniak and Croat to the Federation; however, all three peoples are viewed as constituent to the BiH, which applies to its entire territory, simply due to the fact that, under the Dayton terms, the BiH as a state retains some constitutional powers; since the BiH bodies are representative of both entities, the three peoples co-constitute such bodies through their legitimate representatives.

Besides, the Constitutional Court passed the decision it did; however, the decision’s practical implementation is much more problematic than the decision itself. The international community’s way of implementing the decision was as follows: one simply adds some members of the constituent peoples, for instance of the Bosniak and Croat from the RS, to the ‘opposite’ legislative assemblies (for instance, the Bosniak and Croat to the RS legislative bodies), and one thus quasi-ensures equality of the peoples throughout the BiH territory; this, of course, makes no sense. As long as they remain unable to elect their own representatives to the bodies of the entities, the peoples remain non-constituent despite appearances to the contrary. Hence, the international community in fact simulated an equal constitutionality of the peoples throughout the BiH territory; the simulation takes the members of the peoples in a fictive sense as the representatives of the peoples despite the fact that the membership and representation do not coincide or guarantee one another.

A simple example: RS has a vice-president who has to be a Croat. According to international community, this should suffice for one to claim that the Croat people are constituent not only to the Federation, but also to the RS. However, it is clear that the vice-president is elected to the post by the Serb, not by the Croat, vote; this means that the Croat vice-president in the RS is actually a representative of the Serb, not the Croat, people. In other words, by the election of the vice-president the Croats remain as non-constituent to the RS as they were without the BiH Constitutional Court July 2000 decision. Similarly for the level of the Federation, High Representative Petritsch declared in April 2002 amendments to the Federation Constitution that radically altered the ethnic composition of both legislative and executive bodies. Take as an example Petritsch’s amendment 44 to the Federation Constitution – it does not ensure ethnic equality, or co-constitutionality; it harms the Croat constituent position within the Federation: the amendment stipulated that 8 Federation ministers will be Bosniak, 5 will be Croat, and 3 will be Serb.

Why a half of the total number of ministers is Bosniak? There is no defensible, non-arbitrary answer to the question. Why has Petritsch allowed outvoting of the Croat ministers? Again, one cannot get a defensible answer. Especially, there is no defensible answer to the following question: if the Bosniak people can elect a disproportionately high number of the members of legislative bodies, who are also members of the Croat and Serb people, how could one at all talk about the two peoples as constituent to the Federation? Also, have in mind that the Federation was established by a mutual agreement between the representatives of both Croat and Bosniak peoples as equally valid parties to a contract that is constitutive not only of the Federation but also of the BiH itself.

Hence, summarily, the Dayton framework for peace has been interpreted by the international community in the way that violates the fundamental principles of the Dayton compromise, especially the principle of constitutionality of the two peoples within the Federation, and thereby also violates the DAIF despite the fact that a majority of UN SC Resolutions, from the end of 1995 till today, officially voice endorsement of the DAIF.

Finally, apart from having introduced the two structures as a part of an imposed implementation/interpretation of the Dayton frame, the international community decided to apply another strategy – one of the strengthening and expanding of the central powers of Bosnia-Herzegovina. Such strategy is irreconcilable both with the Dayton peace plan, i.e. the Constitution, and with the DAIF which is constitutive of the Federation. For instance, the authentic understanding of the Dayton Constitution does not foresee central BiH powers in the area of defense. However, the international community obviously decided to exploit the vague provisions of the Dayton Constitution, including one on the BiH Presidency as ‘a civilian command authority over armed forces,’ to expand the central powers of BiH. One, however, ought to have in mind that the DAIF itself operates on the premise that the entities should be strong, while the central government weak or loose. A strict adherence to such a premise implies that the provisions on the powers of the Federation, not of the state of BiH, ought to be read widely, not narrowly; the international community, however, decided to apply a different strategy.

That is why today we have a very curious situation in the BiH: the Dayton BiH is founded on the agreement stipulating that a party ought to return many powers from the central (former ‘Republic of BiH’) to the entity level, whereas the very implementation of the Dayton Constitution redirects those powers back to the central, state level. It seems that one party to the agreement, the Bosniak one, has been treated unduly as a most favored one – the powers the Bosniak side had to return to a lower level to ensure compromise and peace, as a part of their original commitment, have in the course of Dayton implementation been returned to the level at which the side originally desired them to be; however, have in mind that such a desire, a desire of one side to figure as a ‘foundational,’ even ‘a majority people’ to the BiH, a people endowed by ‘a surplus of rights’ vis-à-vis the other two peoples, acted as a cause of a deep political disagreement and contributed to the outbreak of the state of war.

The aforementioned fact of the expansion of state-powers clearly indicates that the international implementers of the Dayton give only a verbal, not real, support to DAIF. Their actual acting is in direct violation of the key provisions of the agreement: one on constituent peoples of the Federation, on a parallel transfer of powers for the purpose of strengthening of the Federation, on principled equality of the signatory-parties. Hence, one should not find it surprising that one of the main ideologues of the American post-Dayton constitutional intervention in BiH, the International Crisis Group (ICG)[xiii] in their comment suggest that the DAIF had not been signed at all and that the UN SC only pretends to be supporting the agreement – for instance, in their 28 September 2010 report the ICG clam the following: “Dr. Christian Schwarz-Schilling, the international mediator for the Federation (1994-2004) and the international community’s High Representative (2006-2007), tried to persuade the Bosnian [=Bosniak] delegation at Dayton to place their strategic interests first on the level of the Federation and then on the state. He compared this with West Germany’s strategy after the Second World War, which ultimately achieved East Germany’s peaceful reintegration. The delegation, persuaded by then-BiH Premier Haris Silajdžić, rejected this advice.” [xiv]

ICG here passes in silence over the fact that the ‘Bosnian delegation’, by signing to the DAIF, adopted exactly the strategy of which Schwarz-Schilling only ‘tried to persuade them,’ and that it was nobody else but Haris Silajdžić who co-signed the agreement. Under the understanding that they, by signing to the Dayton peace plan, also signed to the formula ‘two strong entities, one loose central government’, the formula that is also implied by DAIF, the ‘Bosnian delegation’ adopted and signed both documents. One should add another fact related to the ICG 28 September 2010 report, because the fact is tightly related to the aforementioned detail. In the report ICG claims as follows (p. 3, footnote 20): “In Bosnian constitutional theory, inherited from the former Yugoslavia, the state was created both by individual citizens and by specific national groups, its constituent peoples. Constituent peoples enjoy collective rights regardless of their numerical size.” Here it is nearly impossible to avoid the impression that, by rhetoric easy to see through, the ICG treats the constituent peoples, a key part of the preamble to the Dayton Constitution, as a dubious constitutional category whose origins lie in the backward communism that deserves to be put in the dustbin of history, or in a war-torn country whose ‘constituent peoples’ were capable only of triggering and making a war.

Before I propose some recommendations, I bring this part to a close by presenting an analogy I deem very suitable in illustrating the key facts related to the implementation of both DAIF and the Dayton framework for peace.

Carl Schmitt, an influential German political scientist and a legal theorist, especially in the decade before the World War Two, published in 1933 a highly acclaimed essay entitled ‘Legality and legitimacy.’ The essay was published at the time of Nazi assumption of power in Germany and their abrogation of the Weimar Constitution. The essay warns about the dangers that the figure of so-called ‘extraordinary law-giver’, a legal personality who gives an ultimate interpretation of a constitution and decides on applicability of the constitution in some critical periods, poses to any constitution, including the Weimar one. Schmitt also emphasized that the power of introduction of constitutional amendments can too be exploited to abrogate or suspend some value-related aspects of a constitution, or those aspects that affirm the values that underlie a constitution or an agreement.[xv] Schmitt also noticed that every party that wins elections by its victory gains a ‘supra-legal premium:’ the party gains a position through which, due to its sheer political power, it can take a legal frame of the state to a political direction, purpose or goal, it desires or finds worthy of implementing.[xvi] Schmitt also warned about the dangers posed by revolutionary parties that are particularly inclined to exploit their ‘supra-legal premium’ and that, via the figure of an extraordinary law-giver or an ultimate interpreter of a constitution, can subordinate the values of the constitution to their political interests or even eliminate such values in order to open the room to their arbitrary political acting, without constitutional constraints.

It is interesting to note that Schmitt’s essay can be read as a very precise prediction of the Nazi attitude to the Weimar Constitution – by relying on the provisions concerning the state of emergency, the Nazis have actually suspended all fundamental human rights, including the right of ‘equal chance’ (for all the parties), and have thus abrogated the key value-aspect of the Weimar Constitution; in purely formal terms, during the Nazi era the constitution never ceased to be in force; however the Nazis reinterpreted the constitution which enabled them to replace the constitutional value-system with the rules of the state of emergency; this has then given them the opportunity to declare communist party illegal and to limit drastically the freedoms of expression, thought and association.

Similar developments took place at the post-Dayton Bosnia-Herzegovina in the course of implementing of its key agreements. The figure of an extraordinary law-giver, the High Representative, was introduced, which enabled an international actor, USA primarily, to take the Dayton implementation towards the political goals it found desirable, suitable, or preferable. Secondly, despite the fact that the Constitution remains in force in formal or legal terms, the values that the Constitution was supposed to safeguard, including primarily the rights of the constituent peoples, had been abrogated or suspended; or to put it in the most precise terms, those values had been prevented from materializing. Thirdly, such an approach can hardly be described as constructive – it does not support or sustain BiH democracy nor it has any connection to the actual multiethnic character of Bosnia-Herzegovina; it simply humiliates all the constituent peoples and citizens of Bosnia-Herzegovina. Should one describe the power of Bosniak people to elect by majority vote ‘a Croat’ member of the BiH Presidency as a factor that can ensure either dignity or civility to the people? It is important to understand that the question concerns Bosniak people not only as a people, but also as citizens.

 

 

Recommendations

 

International community, involving primarily the USA, the major powers of EU and the Russian Federation, should recognize that, thus far, the process of implementation of the Dayton framework has been futile and misguided. If the latest report by the ICG suggests anything, it is that the process has led nowhere.[xvii] It is impossible to implement a peace frame in the condition of the state of emergency, which the international community created and maintained itself through the body of the high representative. As a part of the same recommendation, one should have in mind that imposed solutions of any kind, like any imposed structure that cannot be reconciled to the authentic Dayton compromise, are untenable in the long run, hence still-born. The same applies to the current attempts to ‘push’ the parties towards a kind of reform of the constitution that is defined well in advance.

Additionally, the international community should finally come to terms with the two key facts: the basic intention of the constitutional emphasis on the category of ‘constituent peoples’ in BiH boils down to the intention to prevent ethnic discrimination; it would be meaningless to try preventing such discrimination without actually referring to those ethnic categories with which a super-large majority of BiH citizens actually identifies and which are used as the foundation for identification and attribution of some collective rights.[xviii] The thesis, that such kind of rights cannot be at all put into harmony with individual rights, or that the former somehow inherently undermine the latter, is a political myth that serves in the BiH primarily as an ideological weapon of the continuation of war. Also, have in mind that endorsement of such a thesis would prevent the USA from functioning too. Secondly, ‘pushing’ the implementation of the Dayton frame in the direction that one party to the frame finds compatible to its interests, that also coincide with its war-time definition of its interests, supplies a perfect argument to the other two parties to demand a return to the status quo ante. Such ‘channeling’ of the process of Dayton implementation not only feeds the aspirations of Bosnian Serbs and Croats towards full recovery of Herzeg-Bosna, or full RS independence; it justifies them and makes them gain additional strength.

Those who view themselves as legitimate representatives of BiH Croats should realize that, in the given conditions, they have a legitimate right to call for a return to the status quo ante. This would provide an ample negotiating room in all future talks about the future of BiH, including the talks about the issue of the Federation reform. The same applies to Republic of Croatia which, being one of the five signatory-parties to the Dayton peace accords, is committed to assisting implementation of the accords, preferably under its own, not the high representative’s or USA, interpretation. The Croatian representatives should realize that it is simply impossible to take a neutral stand vis-à-vis the recent developments, or current state, of the BiH not only in a moral, but also in a legal or political sense. Croats of BiH, as one of the three constituent peoples of BiH, had been prevented from enjoying some collective rights that follow directly from the preamble to the Dayton Constitution.

To repeat, the key agreements signed at Dayton do not imply a ‘pact of suicide.’ It is impossible to interpret such agreements as authorizing the process of de-constituting of the Croat people as a constituent people to the BiH. This also implies that the Croat, or Croat-oriented parties in BiH, should be much more aware of the fact that the rules of game currently in force in BiH, including primarily the election law and despotic judicial interventions by the BiH Constitutional Court, had been imposed. The will to remove such rules should be much more clearly pronounced by the Croat-oriented parties. If you continue to participate in the game in accordance with the rules of which you claim that they are unfair, your claim will be taken with decreasing seriousness and will necessarily lose in credibility. However, one should continue to participate in the game in a temporary sense, as long as the game leaves one a minimal chance to alter the rules, with the proviso that one then needs to work actively on the rules’ alteration during the time the chance was given to one. Also, we should all be aware of the fact that the flow of time in BiH puts nobody at advantage, and that we actually have no more time to waste.

For all the parties to the Dayton BiH, the relations would certainly undergo a radical change once a simple fact was brought to awareness – the party who signs to an agreement is a party who gives a promise. Following the fact of promise-giving, two requirements pertain to the party who gave the promise – a) to know the content, the meaning of the words by which the promise was formulated; b) to respect, or actively adhere to, the words in their future acting. For a time being the international community in BiH prevents the BiH parties from fulfilling their promise by suggesting to the parties that they do not sufficiently know the meaning of the words that make the substance of their promise. As long as the suggestion is taken for granted, the Dayton promise will be impossible to fulfill. The so-called ‘international community’ seems thus far unable to recognize this fact, which is why, despite the appearances and simulations to the contrary, implementation of the Dayton peace plan actually has not been taking place. I fear that somebody could soon take the fact with a full seriousness.

 

 

[i] The readers should deem the following fact very curious and worthy of emphasizing: the original draft of Washington Agreement, offered to the parties for consideration, designates the two parties to the agreement as ‘Croats’ and ‘Bosnians.’ Alija Izetbegović must have reacted to such draft with astonishment; upon his intervention, the term ‘Bosnians’ was replaced with the constitutional category of ‘Bosniacs;’ for this, see Kostić, Roland (2013), ‘American nation-building abroad: exceptional powers, broken promises, and the making of ‘Bosnia’’, in: Eriksson, M., Kostić R. (2013), Mediation and Liberal Peacebuilding: Peace from the Ashes of War?, London and New York: Routledge, pp. 22-39, p. 28.

[ii] ‘Republic of BiH’ is a pre-Dayton form of central government of BiH; with Dayton, the term ‘republic’ disappears; at the time of signing of DAIF the functions of republic were performed predominantly by the representatives of the Bosniak-Moslem people.

[iii] My quotes from the DAIF follow http://www.ohr.int/other-doc/fed-mtng/default.asp?content_id=3566 (accessed on 9 August 2014)

[iv] See http://1997-2001.state.gov/www/regions/eur/bosnia/bossec3.html (accessed on 9 August 2014)

[v] Such is also the view of Alija Izetbegović; see Kostić (2013), p. 28.

[vi] See also Holbrooke, R. (1999), To End a War, New York: The Modern Library, rev.ed., pp. 96-7

[vii] See Aust, Anthony (2013), Modern Treaty Law and Practice, Cambridge: Cambridge University Press, 3rd edition, p. 281.

[viii] My quotes of Ganić and Pogarčić follow Topor, Gabriel (1996), ‘Bosnia: Obstacles to Implementing the Peace,’ Transitions Online 12 January 1996: http://www.tol.org/client/article/1944-bosnia-obstacles-to-implementing-the-peace.html?print (accessed on 9 August 2014)

[ix] See also Pehar, D. (2012), ‘Bosna i Hercegovina kao veleposlanstvo Visokog Predstavnika – republikanska kritika’, (Bosnia-Herzegovina as the Embassy of the High Representative – a Republican Critique), Političke analize (Zagreb) 10, pp. 3-9; web-site http://www.fpzg.unizg.hr/docs/PA/Pehar_tekst.pdf ; for an English version, see http://independent.academia.edu/DrazenPehar

[x] See http://hudoc.echr.coe.int/sites/eng/pages/search.aspx?i=001-96491#{“itemid”:["001-96491"]} (accessed on 9 August 2014)

[xi] In this regard too, the International Crisis Group (ICG) fabricates data; in their report no. 209 (28 September 2010, p. 20, footnote 201) the ICG claim as follows: “The constitution [of BiH] specifies that only those who declare themselves Bosniaks, Croats or Serbs can be elected to the state presidency and to its House of Peoples.” ICG, Federation of Bosnia and Herzegovina – a parallel crisis: http://www.crisisgroup.org/~/media/Files/europe/209%20Federation%20of%20Bosnia%20and%20Herzegovina%20—%20A%20Parallel%20Crisis.pdf (accessed on 9 August 2014)

[xii] This is Izetbegović’s view from 1998; my note 5 reproduces his view from 1994 and 1995; for the text of the ruling by the BiH Constitutional Court, see http://www.ohr.int/ohr-dept/legal/const/pdf/Djelomicna-odluka-3.pdf (accessed on 9 August 2014)

[xiii] See, for instance, Kostić, Roland (2014), ‘Transnational think-tanks: foot soldiers in the battlefield of ideas? Examining the role of the ICG in Bosnia and Herzegovina, 2000–01,’ Third World Quarterly, 35:4, pp. 634-651

[xiv] ICG, Ibid. p. 2

[xv] Schmitt, Carl (2004), Legality and Legitimacy, Durham & London: Duke University Press, translated and edited by J. Seitzer; p. 95

[xvi] Schmitt (2004), pp. 31-33

[xvii] On this report, see in ‘Tri federalne jedinice za tri političke zajednice – izlazna strategija Međunarodne Krizne Grupe (ICG) iz BiH’, (IDPI, Mostar, 28 July 2014; http://www.idpi.ba/icg/ (accessed on 9 August 2014))

[xviii] See Pehar, Dražen (2011), ‘“Deparlamentarizacija ustavotvorstva,” Daytonske ustavne aporije i simulakrum “bosanske nacije” – svjedočanstvo o dovršetku teritorijalizacije pravno-političke misli u BiH’, Status 15, pp. 125-147

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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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