IDPI

On an analysis by Konrad Adenauer Stiftung that should have remained unpublished

On an analysis by Konrad Adenauer Stiftung that should have remained unpublished

On an analysis by Konrad Adenauer Stiftung that should have remained unpublished
August 26
14:41 2014

Author: Dr Dražen PEHAR

It is with amazement, perhaps even a shock, that one should register the amount of irresponsibility and incompetence with which some NGOs in Bosnia-Herzegovina (BiH) approach some serious issues or tasks, such as analysis of a status of a constituent people, or peoples, within the context of the process of ‘implementing of Dayton peace frame for BiH,’ as the somewhat empty phrase has it. One of the best illustrations of such a sad condition can be found in a study recently published by Konrad Adenauer Stiftung (KAS), a German non-profit organization funded by the CDU, in cooperation with European Academy at Sarajevo.

To grasp fully the KAS analysis as it is published, I will inform the reader of some contextual facts of which I learned by a pure accident.

Following the coup d’etat by so-called ‘Platforma’ parties in the Federation of Bosnia-Herzegovina, that was ad litteram an anti-constitutional formation of the Federation Government, supported by a decree by the High Representative Inzko temporarily suspending a decision by the BiH Central Election Commission (the suspension continues till today; see http://www.ohr.int/decisions/statemattersdec/default.asp?content_id=45890); a decree which Inzko published on 28 March 2011, some voices from within the international community seemed to have half-heartedly admitted that there may be a problem with today’s status of Croats as a constituent people to the BiH. Among those voices the dominant one was by Sabina Wölkner, then director of the KAS Sarajevo office. After a couple of meetings with the presidents of HDZ and HDZ 1990, Ms Wölkner stated publicly that the KAS would organize and prepare a serious study to explore the real status of Croats today within the context of implementation of Dayton peace agreement.

I was accidentally put in touch with Ms Wölkner because the then (2011) president of HDZ 1990 recommended my name as a potential participant to a team of scholars who should work on the project. However, the time was passing by, and I was increasingly inclined to form an impression that the KAS plan was but a PR-move, a spin; I was unable to discern a sufficient amount of the sense of urgency in KAS public statements and thus was unable to conclude that the organization approached its own project with a sufficient amount of seriousness. Then in 2012 I received information to the effect that Dr Joseph Marko, a former bench at the BiH Constitutional Court (from 1997 till 2002), will act as the leader of the team of researchers to work on the project. To me this was a senseless and even highly immoral idea – Dr Marko is one of the Constitutional Court benches who passed the Court’s July 2000 decision on ‘constitutionality of all peoples throughout the BiH territory’, to which followed a kind of political-constitutional engineering that prevented Croats from enjoying certain rights that we should enjoy as a BiH constituent people. The Austrian legal scholar tied his hands with the then Austrian high representative (Wolfgang Petritsch) in the process that has not ended well for BiH Croats. Hence it was meaningless and counterproductive to come up with the idea that Dr Marko should be a member, let alone the leader, of the team of scholars who were, no doubt, supposed to say a few critical words about the decisions in which he himself took part. However, Sabina Wölkner had a different view.

Being a scholar who cares about the ethical aspects of the context within which a research is conducted, I was interested in a single issue: let us assume that Dr Marko will be a team leader. Should I, as a team member, have the right to publish a dissenting opinion? I asked Sabina the question in such explicit form. She, however, responded in the negative. To which I then replied that it would not make sense for the two us to meet, let alone to discuss possible ways of cooperating on the project. Hence I left this frame in a relatively early phase, which today, having in mind the actual result of the KAS research/analysis, I find a very agreeable and comforting fact.

The analysis was complete and published in February this year. Finally it turned out that Dr Marko was not given the role of a team leader (the actual reasons for such a decision may be only a subject of speculation); he prepared an independent analysis on the subject of ‘Croat cultural autonomy.’ More importantly, no real analysis was actually performed. The things turned out in the way that I initially expected: a PR job was done, and the concern that quasi-triggered the work on the analysis was not real concern at all. The period from March 2011 till February 2014 was wasted on a story that appeared to be coming, on a void promise that one would do something serious about the matter. As I explain in the rest of this paper, the actual results of the KAS study show all kinds of flaws that an intellectual work can show: ignorance concerning elementary facts, suppression of important historical facts, an abuse of data, a low-quality constitutional hermeneutics, nearly non-existent political theoretical perspective, and in some cases a badly hidden neo-colonial tone that addresses its subject, which in this case is a whole bunch of individuals, a people/nation, without a minimum respect or very basic politeness.

However, the KAS analysis displays a very curious attitude about itself; it contains some comments, or kinds of review, by four members of the Croat people two of which (Tadić and partly Šarčević) were sufficiently honest to emphasize some serious flaws in some crucial parts of the analysis. In other words, KAS people prepared a number of analyses authored by foreign authors (plus assistant professor Adamović) that unsuccessfully aimed at clarification of some key aspects of the ‘Croat question’ in BiH; but then the study finishes with some partly negative comment (Mile Lasić, Ivan Lovrenović, Mato Tadić and Ivan Šarčević) on methodological and scholarly quality of the study. In other words, it seems as if KAS, or Sabina Wölkner, counted on the possibility that the study will not produce a respectable and persuasive outcome, and therefore decided to let some Croat voices express some negative views of the study within the study itself, which indeed enables KAS to distance themselves from their own product. Obviously, to KAS and Sabina Wölkner, rhetoric, viewed as a method of interest-driven manipulation of verbal messages, was much more important factor than the scholarly aspects of the project itself. This also explains why, counting from the date of the announcement of the initial idea, the time needed to complete this minor study (it is a 80-page booklet composed by ten scholars, not including the translators and Ms Wölkner herself) stretched well over two-and-half years.

The reader does not need to wait too long to have some unpleasant experience in reading. Actually it will suffice if s/he pays more attention to the cover. The very title of the study commits a cultural faux pas: KAS names its analysis as ‘Naučna studija (Analiza implementacije ustavnog i pravnog okvira na terenu)’ (within the project ‘Ustavna, pravna i faktička pozicija hrvatskog konstitutivnog naroda’), and dates its publication to ‘februar 2014.’ In proper Croatian language, it should be ‘znanstvena studija’ and ‘veljača 2014.’ In a symbolical sense this gives the reader a sufficient hint that the study was perhaps not projected, or born in mind, to the benefit of Croats as a constituent people to the BiH.

Then, once we open the KAS booklet, many more unpleasant surprises await us.

 

Adamović

The analysis opens with a text by assistant professor Nedim Adamović (the author’s bio is not presented, nor is the bio of the remaining authors, which is a serious technical shortcoming of the study) ‘The report and analysis of facts.’ The text is 18-page long, and is predominantly filled with graphics and power-point presentations. The reader immediately understands that the very title is overly imprecise: what kind of report? And what kind of data? And, why the focus on such data and not some others? It is clear that this is not an analysis in the field of ontology or metaphysics, but in political and constitutional theory that should remain focused on a clear and discernible subject. Now, what has Adamović’s contribution actually produced? It is based on a questionnaire that Adamović sent to various levels of BiH government, asking for a simple type of data: how many Croats work in your institution? Furthermore Adamović asked for three additional kinds of data: what is the actual governmental position of the said Croats, and does your guideline foresee some ethnic quota for the employees? Secondly, is there a mechanism of protection of national interest? Finally, is there some evidence concerning some requests to establish the cases of discrimination, and had some decisions been passed based on such requests?

What is the most interesting aspect of Adamović’s analysis? 98% of the text simply presents data concerning national/ethnic participation. In fact, Adamović’s analysis amounts to an elementary statistical presentation without a clear and unambiguous result. For instance, he does not focus on the topic of ethnic discrimination or on the means to prevent such discrimination, except in a very brief paragraph to which no conclusion or rudimentary analysis follow.

Hence, right at the start, it is unclear what Adamović attempted with such an elementary statistical presentation. Was it an attempt to demonstrate that a number of Croats is actually employed in the BiH governmental institutions? Furthermore, if this was indeed demonstrated, what has KAS aimed to demonstrate further with such kind of data? The only visible result of such statistical presentation is in the realization that Croats are indeed in some proportion employed in those governmental offices at various levels. However, as to the issue of the actual constitutional or political position of Croats as constituent people to the BiH, no discernible result follows from such a presentation or realization. A simple example can demonstrate this: Starting from the premise that a third of BiH Presidency seats is filled by a Croat (high statistical ratio indeed), no conclusion follows to the effect that Croats are today a people of equal status to the other two in BiH.

Doing a simple statistics, and not dealing with the issue of the methods of decision-making, or of the power-positions in which real judicial or political power is exercised, makes no sense. Also, presenting data in a synchronical fashion, without diachronical relations, with no consideration given to developments, evolution, or history, makes no sense and proves nothing. The only thing proved in the first study is that the numbers show that Croats participate in some governmental positions. Have in mind that this is a shortcoming of both empirical and conceptual character, which also indicates a fundamentally unsound epistemology or methodology of the approach. To prove by statistics, such as presented by KAS, that Croats exist and work, tells one nothing about the actual political or constitutional status of the Croat people in today’s BiH. However, Adamović’s study contains a single paragraph that tell us something about the protection of constitutionality; on page 23 we can read the following statement: “In BiH Federation all institutions have responded in the negative to the question if they have at their disposal some mechanisms for protection of vital national interests….” (Adamović’s questionnaire was sent to the following addresses: Supreme Court of BiH Federation, Constitutional Court of BiH Federation, the BiH Federation ministry of interior, the BiH Federation police directorate, the BiH Federation Government – secretary’s office, The BiH Federation – public relations office, the Expert Services of the BiH Federation Parliament – House of representatives, and the BiH Federation state agency service.) This is a catastrophic data, but Adamović has not focused on it nor emphasized it in any way. As we will see, the second KAS team of authors explicitly deny this important empirical fact, and thereby the study taken as a whole has become contradictory, hence unusable, almost at the very start.

 

Woelk/Keil

The second text is authored by Jens Woelk and Soeren Keil; the text title is ‘Territorial dimension of the “Croat question” in Bosnia-Herzegovina.’ It is the longest text within the KAS study (pp. 25-44). However, it is also a text of a lowest possible quality. The very title of the text is inadequate – the authors’ attention to the territorial dimension of the Croat question is minute; they pay much more misdirected attention to many additional topics: federalism generally and in BiH; reform of the structure of Federation, options for a change, and the EU integration; the Croat perspective towards the issue of constitutional reform of BiH (chapter 4 of the analysis) is in a distorted way dealt with on a one-and-half page. Additionally, the authors repeatedly emphasize the need to implement the decision by the European Human Rights Court in ‘Sejdic-Finci case,’ and more importantly, point to an alleged fact that collective rights have in the BiH been safeguarded at the expense of individual ones. In other words, the authors thereby sufficiently indicate that their concern with the collective rights of BiH constituent peoples is nearly non-existent.

Why do I claim that the text is of a lowest possible quality? This is primarily due to a full lack of sense of argumentation. I will quote a single, but a key example from the chapter on the ‘Croat perspective.’ The paragraph starts with the following sentence: “Due to a complex nature of the Dayton construction, Croats enjoy territorial rights (in three cantons with a Croat majority and two mixed ones) and collective rights (for instance, in the House of Peoples.” One should immediately notice that the authors do not refer to, for instance, the status of Croats within the Federation Government; also they do not refer to the method of election for the Federation House of Peoples; and do not refer to the ‘Komšić case’ either. Now, apart from such hidden empirical data, the important point to emphasize is the following: following the quoted sentence, the authors continue with an amazing tirade composed of quasi-historical, roughly tumbled, facts; they say that a single party, HDZ, dominated the BiH Croats, that a part in it was played by Tuđman, that they (or we) demanded independence from BiH (which is historically inaccurate), that, in the aftermath of Dayton, we continued supporting some parallel institutions; all of that has escalated in 2001 when the High Representative took some extraordinary measures against the HDZ. And then, by a logic that will forever elude my mind, the authors conclude by the following statement:

“Hence, in the sense of an institutional and territorial participation, one could claim that Croats enjoy a huge autonomy and a special treatment in BiH. Considering the fact that Croat population makes somewhere between 10 and 17%, they still have the key role in all decisions at the central government level as well as a number of veto options.” Then the authors further add, “and yet, they are of a very critical mind vis-à-vis the Dayton structures and their own position within the state of BiH.” (p. 34)

In other words, the authors suggest that Croats have everything, but somehow remain unsatisfied. An ill-informed reader will be able to conclude from this maliciously presented argumentation only the following proposition: those Croats are an ungrateful, and perhaps also barbaric and capricious, or even mean, people.

The argumentation as proposed by the authors deserves only one kind of response: by mockery and despise. We, Croats, should be thankful to the international community because it produced a condition in which we do not have to bother ourselves with voting for our own representative at the BiH Presidency. Supported by Barry’s election rules, the Bosniacs will vote one on our behalf. Why should we waste our precious time on such affairs? And, who can tell us that such practices constitute a violation of our collective rights and autonomy? Here, Jens Woelk and Soeren Keil ‘explain’ to us that our political and constitutional autonomy will survive regardless of our actual fate and/or real developments that befall us as a real political community within an existing constitutional-political frame.

General attitude to the BiH Croat question by the authors is also pertinently illustrated by their view of the ‘Komšić and BiH Presidency’ problem. They somehow managed to ‘explain’ the problem within confines of a single footnote. First they point out that Croats feel discriminated against, and then in footnote 37 (p. 31) put the problem in the following terms: “Discrimination at the central level is related to the last two rounds of election of the Croat member of the BiH Presidency, when Željko Komšić, a moderate Croat and a former Social Democratic Party (SDP) member, won the seat. He was elected mainly by the vote of moderate Bosniacs, but HDZ and HDZ 1990 claimed that he did not stand for the interests of the Croat people in the BiH.” This is where the analysis of the ‘Komšić problem’ ends. Now, what grasp can one get of the very problem through the author’s presentation of it? The accurate answer is: none.

First, it needs to be noted that, in a very elementary sense, the problem ought to be related to the provisions of the Dayton Constitution dealing with the BiH Presidency, and also to the preamble to the Constitution that deals with the constituent peoples. Then, the same problem should be further related to the provisions of the election law. Thirdly, and finally, we also need at least a basic politico-theoretical-cum-constitutional conceptual frame to explain why, and in what sense, does the problem emerge, or perhaps does not. One finds nothing of it in the text by the authors. They simply do not deal with, or are not interested in, the true causes of the problem; their only concern is how to frame, in rhetorical terms, the problem so that the problem ceases to look like one, which should then lead an uninformed reader to conclude that Croats are either completely wrong, or are right but to the same extent as the party opposing the Croat claims concerning the violation of the rights of a constituent people. This is why they present Komšić as ‘a moderate Croat elected by moderate Bosniacs.’ In other words, in the authors’ eyes, the whole process of electing of Komšić serves to demonstrate one’s political virtue which is taken for granted or assumed tacitly; it further serves to indicate a quasi-positive process of replacement of ‘radical Croats’ with ‘moderate ones’, which in reality has nothing to do with Komšić’s performance as a presidency member. Secondly, an objection against Komšić is attributed exclusively to the two HDZ parties; since the two parties object against an ‘election of a moderate by the moderates’, it is tacitly suggested that the two parties are radical, or non-moderate, parties, hence that they are retrogade. Thirdly, to frame the constituent people’s interests in terms of the interests of the parties oriented towards the people means to confuse the terms of the debate, and it also means to redirect the debate from the realm of constitutional politics and the politics of the principles of democratic representation to the realm of narrow party politics. This all is, of course, an inaccurate, unproductive, and ultimately malevolent kind of attitude to the problem. In this part too the KAS analysis has produced an unpersuasive and not only useless, but actually harmful, political and theoretical result.

 

Marko

The following study is signed by Dr Joseph Marko, former judge of the Constitutional Court of BiH: ‘Cultural autonomy for BiH Croats?’ The study is one of the shortest ones, eight pages in length.

Hence, it turned out that Dr Marko was not the team leader, and that his role was of a scholar who submitted an independent study on equal footing with the remaining studies by the other team members. One should also note that Dr Marko was not quite insensitive: for instance, he has not simply produced a gist of his own constitutional ruling in July 2000 BiH Constitutional Court decision that was passed by disregard to the Serb and Croat benches at the court. Dr Marko decided to play here a ‘constructive role.’

The direction in which Dr Marko took his analysis is very clear; which I think is a direction in which no analysis should be taken. He decided to promote the idea of a Croat cultural autonomy within the BiH Federation and the BiH. It is important to emphasize that such an idea stands in perfect harmony with Marko’s own role in the process of de-constituting of Bosnian Croats primarily as a people constituent to the BiH Federation: following the process of weakening of the constitutional rights of a constituent, hence par excellence political community, one can the next step, which is to redefine the people as exclusively a cultural community or a national minority whose rights should be limited to a cultural sphere. There is no doubt that Croats should already enjoy cultural rights, but national minorities throughout the world, and especially in the EU, enjoy only cultural, but not essential political rights.

Dr Marko’s main concern is with the question of ‘cultural assimilation’ of Croats, which, within the context of the Dayton constitution, is a meaningless question. I strongly believe that Croats do not face the danger of being culturally assimilated into, for instance, the Bosniac cultural community. However, we are indeed deprived of enjoying some political rights that pertain to us through the letter of the constitution, and such rights have nothing to do with the issue of cultural autonomy. In his text Dr Marko actually suggests to Croats to occupy their minds with much less relevant, or fully irrelevant, issues. Again, the underlying suggestion is to the effect that Croats should simply accept their current legal-political position, in which they are discriminated against, to lessen their expectations, and finally to get some satisfaction through the matter that is realistically achievable: for instance, a TV channel, or a TV house, or education in their own mother tongue. In the condition when the Dayton constitution is being implemented in the way that allows for the election of the Croat representative to the BiH Presidency by a Bosniac majority vote, Croats are assumed to be ‘wise’ and to endorse whatever is realistic and doable in such a condition; this is Dr Marko’s advice to us.

 

Bieber/Galičić

Finally we arrive at the fourth, and last, analysis within the frame of KAS whole study (18 page long) “Options for a reform of BiH Presidency” co-authored by Florian Bieber and Drino Galičić. Importantly, the authors present their analysis as non-normative. They claim that they simply present some models, without preferences attached to any, and then somebody, I assume, ought to choose one among the models proposed. What is, in my view, the key problem of the text?

First, the text does not incorporate a Croat perspective, not even under the most charitable interpretation, and is concerned with the Croat question only in a derivative sense and to the extent the problem of BiH Presidency is relevant to the question. However, in the text one cannot find a proper or reasonable explanation why Croats find the election of the Presidency members, under the existing election rules, unfair and unacceptable. One paragraph of the study (p. 55) claims as follows: “[under the election rules currently in force]…a national community, i.e. the Croats in the Federation, can be marginalized in the sense of putting forward a successful candidate for the Presidency, while the other community, more numerous one, the Bosniacs (combined with the Others and Serbs), is large enough to determine the result of the election of both BiH Presidency members elected from within the Federation.” Such an explanation is simply wrong.

A national community is not the one that put forward, or propose, a successful candidate. Candidates run individually, while the community is one that should elect one among several candidates according to some rules and by a free, fair, and democratic election. It is senseless to expect that a community can successfully put forward ‘their own candidate’ because the very notion makes no sense as a political-legal category. However, if one puts the whole problem in terms à la Bieber/Galičić, then Croats are indeed after an impossible thing. Again, the authors suggest that something must be wrong with the Croat opposition to the election of the Croat representative by a Bosniac majority vote. One should also add that the authors here bring in the issue of the size of communities, which, while talking about constituent peoples, must be fully irrelevant. The ‘Komšić’ problem definitely is not a problem of size or numbers.

In fact Bieber and Galičić are aware of the nature of the problem – however, they point to it only in relation to ‘national minorities’ and Others, not to Croats as a constituent people to the BiH. This can be demonstrated with no effort. In addressing the issue of representation of non-constituent peoples, the two claim as follows: “Such dual exclusion of the citizens who do not declare themselves as constituent peoples’ members, despite the fact that the former are an established category under the constitution, needs to be corrected by a constitutional amendment concerning the BiH Presidency provision in order to enable the body to represent [bold by Pehar] fully, and with no discrimination, the whole population of BiH.” (p. 54)

Hence, the key problem is one of representation. The problem is in Bieber/Galičić analysis acknowledged in relation to national minorities, but not in relation to a constituent people. Hence, I openly claim that the text discriminates against a constituent people. One cannot reasonably demand that the category of ‘Others’, which is recognized but ill-defined, enjoy the right of representation without demanding the same thing for Croats, as a constituent people (which is both recognized and well-defined category), within the BiH Federation and the BiH as a whole. Demanding the former but not demanding the latter is a discriminatory, and also unreasonable, practice, and is exactly what Bieber and Galičić do.

Bieber and Galičić also demand a change of the constitution. However, their demand is premised on a flawed interpretation of the constitutional provision on the BiH Presidency composition (after the elections). They interpret the proposition wrongly as a limitation to the process or method of candidacy. Article V of the BiH Constitution does not imply that, as wrongly put by Bieber and Galičić, “a Serb cannot be a candidate in the Federation as an election unit, and conversely, a Croat or Bosniac cannot be candidates in Republika Srpska.” (footnote 103, p. 54) This is a flawed view. In fact, the said constitutional provision places no limits on the right of candidacy for the seats at the BiH Presidency; such right is individual one, while the terms ‘Bosniac, Serb, and Croat’ in the provision should be taken to mean ‘a representative of Bosniacs, a representative of Serbs, and a representative of Croats.’

Such reasonable meaning-attribution enables us to resolve efficiently both the ‘Sejdic-Finci’ problem and the ‘Komšić’ problem (see also http://poskok.info/wp/?p=68033 and https://www.youtube.com/watch?v=8aFXQ2Afzl8 ).

As to Bieber and Galičić themselves, it is important to emphasize that, if we endorse their flawed interpretation of the said provision, we will lose a moral compass because we will lose track of those values that underlie the Dayton constitution, including the value of compromise, of self-determination i.e. liberty, and of equality of BiH constituent peoples. However, once we lose track of such values, and consequently commit the error à la Bieber and Galičić, we will become also indifferent as to the issue of the model of BiH Presidency reform that the parties should ultimately agree on. This brings us to the key problem of the approach advocated by the two authors. However, prior to identifying the key problem, I need to emphasize the following.

I am an advocate of the idea of Croat (and Bosniac) election unit in the BiH Federation as a solution to both ‘Sejdic-Finci’ and ‘Željko Komšić’ problems. I believe that Croat and Bosniac election units are a reasonable solution to both problems, and that, more importantly, the notion of national election units follows immediately from the only rational and ethical interpretation of the constitutional provision on BiH Presidency coupled with the preamble to the Dayton Constitution that enumerates constituent peoples. Now, the reader should not be taken by surprise at the fact that Bieber and Galičić propose some arguments against the concept of national election units. Their arguments, however, are unpersuasive. I will focus on one to which the authors seem to give a primary weight. They claim as follows: “such an approach [through national election units defined primarily by the voter collective identity] would eliminate formal discrimination…however, it would de facto determine beforehand the outcome of the vote, and would further promote exclusion.” (p. 56)

How is it possible that two PhDs subscribe to such kind of proposition? The very outcome of voting is principally indeterminate and unpredictable when several candidates run for an office; also the voter rights should be protected regardless of the likely outcomes of the implementation of such rights. We ought to endorse some outcomes in principle, but not with statistical certainty, if we decide to endorse a method of voting that is in harmony with some democratic principles. No other factor should be taken as relevant to this context. Furthermore, it is simply untrue that this kind of national election unit-based voting would ‘further promote exclusion.’ Who can guarantee that the Bosniac election unit will not elect Jakob Finci as an adequate Bosniac representative to the BiH Presidency? Hence, the arguments proposed by Bieber and Galičić against the concept of ‘national election unit’ are unpersuasive. They are but political sophistry.

Now, let us return to the key problem of Bieber/Galičić analysis. Their analysis is fully divorced from normative questions, or the questions that carry a significant ethical weight. Politics and ethics are not strictly distinguishable. All key political questions involve ethical concepts and relate to a significant degree to the issue of norms. Quentin Skinner, in his Distinguished ‘Lee Seng Tee’ lecture, held on Wolfson College of Cambridge University in October 2007, “What is the state?”, emphasized that this question, as one of the key political questions, is deeply normative (http://sms.cam.ac.uk/media/508596). It is normally posed as the following one: “Whose authority should we take to be the authority of the state?”, or “who can rightfully claim the right to represent a sovereign body on a territory? Is it a people, a king, a parliament, a fictive persona, or nobody?” Similar considerations apply to all other key political questions. All such questions revolve around the question of ‘an optimal good for a community (or communities).’ This is of major importance to the context of the implementation of Dayton peace agreement. In some optimal sense, we should be in the BiH guided by the notion of ‘fidelity to the constitution,’ which cannot be divorced from normative or ethical premises. It is exactly in such a sense that the analysis of a number of ‘equally valid models’ as proposed by Bieber and Galičić ought to be taken as irreconcilable to the notion of ‘fidelity to the constitution,’ that is of an effort to implement the values stipulated by the constitution, as well as to a normative-ethical component of all politics. One should also recognize that, without endorsing such a component of politics, it does not make sense at all to pose the question of today’s status of Croats as a constituent people to the BiH. By what criterion should we measure the status? Clearly we need some ethical standards as embodied in the Dayton Constitution, and such standards should help us to answer the following question: “To what extent has the Dayton implementation deviated from certain standards, which has then led to the violation of the status/rights of a constituent people?” Bieber and Galičić do not pose such a question because normative or ethical considerations simply do not enter their area of concern. Since they do not pose such a question, their analysis, from the perspective of BiH Croats, remains unusable in juridical or political sense.

 

“Our own” commentators

Thus we, at the end, reach the point where we can read the four comments on the KAS-study given by four members of the Croat constituent people (together they make a 17-page long contribution). Here I cannot go into all details or comment on all comments. Furthermore it is an open question if all the commentators are sufficiently competent to assess a study that claims for itself the right to offer some valuable constitutional and political considerations. However, here I select two comments because this gives me an opportunity to say a few words about some more general, and generally more relevant, themes.

First, Mato Tadić: today a bench at the BiH Constitutional Court submitted a negative review of the first two contributions, by Adamović and by Jens Woelk and Soeren Keil. In my view, Tadić unjustifiably submitted a positive review of the contributions by Marko and Bieber/Galičić. I am unable to formulate for myself a satisfactory explanation why Tadić assumed such position; one should ask Tadić himself for a proper explanation. My wild guess is that Tadić was overwhelmed by a kind of professional loyalty or solidarity that temporarily clouded his argumentative abilities as a commentator. I will quote his single sentence. Tadić on page 83 claims as follows: “In my sincere view, this part of study [Marko’s contribution] gives the best presentation of the Croat status within BiH, of the fear of ‘silent assimilation’ and a wrong interpretation of the rights guaranteed by the CoE Framework Convention for the Protection of National Minorities, regardless of the fact that in legal and constitutional terms Croats are not a minority; but they ought to enjoy all the rights as a real minority in the state…” My disagreement with such a proposition is full and straightforward. Why should I endorse Marko’s suggestion to consider myself as a national minority member, and then based on that to claim my right to a cultural autonomy? Should I endorse it due to Marko’s own constitutional court decisions that are founded on a very problematic constitutional interpretation? Of course, I consider Mate Tadić’s readiness to welcome such suggestions by Marko as regrettable and terribly subservient. Furthermore, it is exactly such Tadić’s readiness that in unmistakable terms demonstrates why Croats hold the primary responsibility for their own constitutional-political positions within today’s BiH.

Secondly, Mile Lasić produced a comment on the study, which is so vague that I believe Lasić has not read the KAS analysis in its entirety. Here I select his two comments that, like the KAS study, should have remained unpublished. First, on p. 74, Lasić claims as follows: “…the Croat question should not be reduced to political engineering in the course of the election of BiH Presidency member or of the process of constituting of the houses of peoples, despite the fact that such examples provide a visible indicator of the passionate political culture that Serbs and Bosniacs practice at the entity levels, and also at the state level, whenever they can. Due to their size, Croats cannot respond to Bosniacs or Serbs by the same kind of measure; otherwise they themselves would be electing representatives to the other two peoples at both the state and the entity levels, there is no doubt about it.”

Lasić through such propositions displays a weird, nearly colonial attitude to the Balkan peoples, who are taken a priori as immoral and as able to play only the game of mutual humiliation and intimidation. It is interesting to note that Lasić does not exclude from such a qualification the Croat people either of which he, I guess, is a member. However, more importantly, Lasić seems unable to recognize a simple but essential fact: the practices by the peoples he writes about (one should nevertheless have in mind that here we should not speak about the peoples in totality simply due to the fact that it is clear that not more than a half of Bosniac voter population participated in the election of Komšić) should not be deemed problematic primarily because of their alleged capacity to serve as indicators of a backward political culture. The problem with such practices is in the fact that they are legalized and legitimized, but should not be. The Bosniacs and Serbs that Lasić deals with simply employ their rights in accordance with the election law currently in force. Hence, if one lacks a means of critique of the law, and it seems clear to me that Lasić lacks such a means, then one should not object to ‘the Serbs or Bosniacs’ (and, in different conditions, Croats) in the way that Lasić objects to them.

Why do I argue that Lasić lacks such a means of critique? The reason is presented in the sentence that follows the sentence I quoted: “Speaking just a bit more openly, regardless of the fact that the parts of KAS-study that deal with ‘Komšić case’, or with political engineering in relation to the houses of peoples, are correct when addressed in juridical terms, their flaw is in the following: those parts do not reach the conclusion that legality in BiH has been regularly employed to produce illegitimacy, as demonstrated especially during 2006 and 2010 elections, and also during the March 2011 formation of the Federation Government. To those in both BiH and the international community who see nothing but legality, and fail to notice illegitimacy, that is, immorality that pertains to the ‘Komšić case’ (and also ‘Vlajki case’, for sure), one needs to say that they are unable to recognize the extent of ethnic/national polarization in the BiH….” (p. 74)

Why is Lasić’s reasoning, his diagnosis of the problem, flawed and why do I claim that he lacks the proper means of critique? In our own case, there is no distinction between legality and legitimacy. Formation of ‘Platforma’ Federation government, supported by Inzko’s decree, has directly violated the Federation Constitution; hence it was both illegal and illegitimate. The same applies to the ‘Komšić and Vlajki’ case. Why does Lasić claim that those procedures and decisions were legal? This is so due to his flawed premise that such procedures and decisions are legal because they are in accordance with the election law; and also that, probably in Lasić’s mind, the High Representative is indeed an ultimate interpreter of the Dayton Constitution, which the latter is not. However, such procedures and decisions are still illegal because they do not stand with harmony with a reasonable interpretation of the Constitution, which is what makes them anti-constitutional and illegal. In other words, Lasić is unable to offer a reasonable interpretation of the Dayton Constitution in light of which one could elegantly and simply derive the conclusion to the effect that the said procedures and decisions are both illegal and illegitimate; this is also why his positive assessment of ‘juridical correctness of KAS-analysis’ is misplaced and fundamentally wrong.

Furthermore, I do not think that Lasić is inclined to endorse some views that would, in a more direct fashion, problematize the recent practices of the international community in the course of the Dayton implementation. Had he been inclined so, why could not he say so in this particular case? Finally, when Lasić claims that ‘the international community to the BiH’ seems unable to understand the extent of national polarization in the BiH, to me this seems like a misguided complaint. Actually, the international community seems unable to understand, and take seriously, the notion of ethnic/national equality and fairness in the BiH, despite the fact that such an understanding is a fundamental constitutional commitment as evidenced by the preamble to the Dayton Constitution of BiH.

 

Conclusion

To summarize and conclude: the KAS study is conducted in an amateurish way, without a proper purpose or meaning. It is lacking from the perspective of political theory as well as of constitutional hermeneutics. More importantly, the study has not only failed to propose a response to the ‘Croat question in BiH’, but it has hardly touched on the issue. Now, what was a true motivation of Sabina Wölkner or of Konrad Adenauer Stiftung itself?

I believe that we can today justifiably claim that the whole affair amounted to nothing but a PR-move, a spin. At a certain period of time, one was tasked to create an impression that one deals with the issue of Croat constituent people to the BiH, that one aims to explain the problem in intellectual terms, and then to propose some avenues towards its resolving. However, such an impression has today turned into its opposite. Every lie, the very moment it has been spotted or recognized, causes an immediate loss of trust. It seems that erstwhile KAS Direktorin was never concerned with such simple matters.

Perhaps one should remind oneself of the context within which the KAS announced their initiative: at the time of the ‘Platforma’ Federation Government coup d’etat, to which Croat representatives responded with anger and animosity, it was important to sow a sufficient amount of hope (and illusion) in order to motivate the two HDZ parties to join the central institutions of BiH and to play the role in formation of the BiH Council of Ministers. Perhaps the two parties were already, at the time, aware of the nature of KAS-spin, and perhaps they themselves had no real concerns about the status of BiH Croats as a constituent people. Whatever the case, the key moral of this KAS-fiasco may best be put in the following terms: it is imprudent to trust some foreign/international representatives offering their help, especially one that requires some serious intellectual activity, without a clear, detailed and credible explanation or agenda. Now, the possibility that there was indeed, at a point in time, a real need to give trust to some international representatives, without a credible agenda, should be taken primarily as an indicator of the amount of trust that, today, Croats in BiH have in themselves.

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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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