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What future for Bosnia-Herzegovina?

Date de publication: 06.07.2009

The parties to the conflict in the former Yugoslavia sign the General Framework Agreement for Peace in Bosnia-Herzegovina in Paris, 14 December 1995, as representatives of the Great Powers look on.


The Institute of Democracy and Cooperation has undertaken a mission to Bosnia, visiting the country on 26 and 27 June 2009 as guests of the Lord Byron Foundation for Balkan Studies. They travelled to Banja Luka, Bijeljina, Bratunac and Srebrenica and they interviewed the Prime Minister of Republika Srpska, Milorad Dodik.

The visit occurred shortly after a
decision taken by the international High Representative to annul a resolution voted by the National Assembly of the Serb Republic in Bosnia  (Republika Srpska).  The resolution had sought to repatriate powers centralised at the federal level by earlier Decisions of the High Representative.

This decision is only the last in a long series of decisions, taken over a period of many years, in which successive High Representatives have overturned the decisions of elected bodies and sacked elected bodies.  These measures highlight the often controversial role of the Office of High Representative, an international official who enjoys the status of a Governor over what is effectively a protectorate, and who uses seemingly undemocratic means to prepare Bosnia-Herzegovina for EU membership.

The latest decision comes against the background of what appears to be a concerted push by the new Obama administration in Washington to deal with
"unfinished business" in the Balkans, i.e. to put an end to the provisional Dayton agreement by centralising Bosnia-Herzegovina.

Dayton and its aftermath

Following the end of the Bosnian civil war in 1995, a peace was famously negotiated at the US air base in Dayton, Ohio.  The peace treaty took the form of an agreement, the
General Framework Agreement  which contains the constitution of Bosnia-Herzegovina and provides for the military occupation of the country  and for the Office of High Representative.  These two elements have inevitably turned out to be more important than the constitution itself for, as we shall see, they (especially the High Representative) override it.  This is because of Article 5 of Annex 10 of Dayton, which provides that “The High Representative is the final authority in theatre regarding interpretation of this Agreement on the civilian implementation of the peace settlement.”  In other words, the High Representative is sovereign in Bosnia-Herzegovina if by “sovereign” we understand the right to make final unimpeachable decisions.

Bosnia-Herzegovina is sometimes referred to as “a protectorate” and it certainly resembles one in various respects.  Formally, however, it is not a protectorate but a sovereign state and a member of the United Nations.  The powers of the High Representative are laid out in the Dayton agreement which contains the constitution of the country and which was signed by Bosnia-Herzegovina, Croatia and the Federal Republic of Yugoslavia.  Of course the Americans and to a lesser extent the Europeans had been the godfathers of the agreement – their heads of state and government stood behind the signatories as they signed the agreement and they signed it as witnesses.  But formally Dayton is a treaty between the regional powers representing the three sides in the Bosnian conflict.

It is also often erroneously stated that Bosnia-Herzegovina is governed by the United Nations but this is not so either.  Very often the High Representative is referred to as UN High Representative but he does not represent the United Nations and nor does his office work for it. In fact, it is
not clear whom he represents at all. However, it is true that the Security Council retroactively approves the appointment of the High Representative once he has been chosen by the Steering Committee of the Peace Implementation Council.

The constitution provides for the division of Bosnia-Herzegovina into two entities, the Serb Republic (Republika Srpska) and the Muslim-Croat Federation.  The initial idea was that the federal government would have power only over Bosnia-Herzegovina’s international representation but, as we shall also see, this key provision will inevitably undermine the autonomy of the two entities since EU accession demands the centralisation of power in the hands of the federal government, the subjection of the state to the terms of the Stabilisation and Association Agreement, and of course the transfer of power to Brussels.

For several years after the signature of the Dayton accords, Bosnia-Herzegovina’s progress towards EU membership was supposed to be based on its fulfilment of the terms of Dayton. “The pace of integration of BiH into European structures will be governed by its performance in implementing its Dayton obligations”
proclaimed the Peace Implementation Council on 16 December 1998.  The PIC is the informal body created immediately after Dayton was signed, but before it was formally promulgated, and which appoints the High Representative.   This policy changed, however, in February 2002, when the High Representative was appointed to be EU Special Representative as well.  When Paddy Ashdown became High Representative, he adopted an even more aggressive stance than his predecessors (although they had themselves taken strong and sometimes heavy-handed measures against Serbs and Croats alike) and he seemed determined to overcome all obstacles to European integration.  

It was perhaps as a result of this new zeal that the EU soon started to consider that the Dayton agreement was not the necessary condition for EU accession but instead an obstacle to it.  A
report submitted to the Council of Ministers in 2003 concluded:

(Dayton) … created a highly de-centralised state … State and Entity constitutions provide blocking mechanisms protecting the “vital interests” of BiH’s constituent peoples.  This blocking mechanism may guarantee the rights of each people, but may also make legislative progress more difficult and can lead to deadlock.  In terms of European integration, however, it is important that partner countries are able to function properly; their various institutions must produce the results expected in a modern democratic country.  The complexity of the existing Dayton order could hinder BiH performance.

The system established at Dayton has frequently been questioned both within  and without BiH.  Certainly, from a perspective of European integration, it is difficult to argue that the current system is optimal.

The fact that the High Representative is also EU Special Representative sounds reasonable at first but is in fact highly anomalous.  The High Representative does not in fact “represent” anyone: he governs Bosnia-Herzegovina (or at least oversees the government of the state and its component entities, intervening where he sees fit).   But as EU Special Representative, he represents the EU.  In other words, the High Representative could hold meetings with himself to discuss whether Bosnia-Herzegovina meets the criteria for EU accession!

Finally, of course, it is important to emphasise that not a single aspect of Dayton, including the constitution of Bosnia-Herzegovina which it contains, and including the all-important Office of the High Representative, has ever been submitted to a popular vote or ratified by any democratic process whatever.  Dayton was an exercise in state-building by means of an international treaty – a state, moreover, to which a large percentage of the population never wanted to belong and against which it fought a three-year war, and a treaty signed under American pressure by the state concerned (Bosnia-Herzegovina) and its two neighbours.  The Bosnian Croats and the Bosnian Serbs were not invited to Dayton: Bosnia-Herzegovina was represented by the Muslim president, Aliha Izetbegovic.  The undemocratic nature of the settlement imposed at Dayton was emphasised by the first High Representative, Carl Bildt, when he wrote, “No-one thought it wise to submit the constitution to any sort of parliamentary or other similar proceeding. It was to be a constitution by international decree.” (Carl BILDT, Peace Journey: The Struggle for Peace in Bosnia, London: Weidenfeld and Nicolson 1998, p. 139.)

The “Bonn powers”

The High Representative’s most important power is that outlined in Article 5 of Annex 10 of Dayton – the right to interpret his own powers and the terms of the treaty.  This “final authority” to interpret is highly anomalous and in fact violates every single canon of accepted procedure, especially the principle of the separation of powers.  Successive High Representatives have invoked this Article not only to take unprecedented decisions, for instance sacking elected officials or overruling parliaments, but also to augments their own powers.  One of the earlier High Representatives made this quite clear: “If you read Dayton very carefully,” Carlos Westendorp
said in 1997, “Annex 10 even gives me the possibility to interpret my own authorities and powers.”

When the Peace Implementation Council met in Bonn on 9 and 10 December 1997, shortly after this remarkable declaration by the High Representative, it approved the decisions he had taken and was evidently going to take.  Paragraph XI.2 of the Conclusions says this.

XI. High Representative

The Council commends the efforts of the High Representative and his staff in pursuing the implementation of the Peace Agreement.  It emphasises the important role of the High Representative in ensuring the creation of conditions for a self-sustaining peace in Bosnia and Herzegovina and his responsibility for co-ordination of the activities of the civilian organisations and agencies in Bosnia and Herzegovina. The Council reiterates that the Steering Board of the PIC will provide the High Representative with political guidance on peace implementation. It will continue to meet monthly, inviting representatives of relevant international organisations to attend as appropriate.? The Council welcomes the High Representative's agreement to continue reporting in accordance with Article II. 1 (f) of Annex 10 to the Peace Agreement.? The Council encourages the High Representative to report regularly on compliance by individual municipalities with the provisions of the Peace Agreement.

The Council welcomes the High Representative's intention to use his final authority in theatre regarding interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of difficulties by making binding decisions, as he judges necessary, on the following issues:

-    timing, location and chairmanship of meetings of the common institutions;

-    interim measures to take effect when parties are unable to reach agreement, which will remain in force until the Presidency or Council of Ministers has adopted a decision consistent with the Peace Agreement on the issue concerned;

-    other measures to ensure implementation of the Peace Agreement throughout Bosnia and Herzegovina and its Entities, as well as the smooth running of the common institutions. Such measures may include actions against persons holding public office or officials who are absent from meetings without good cause or who are found by the High Representative to be in violation of legal commitments made under the Peace Agreement or the terms for its implementation.

In other words, the Bonn merely approved and welcomed what the High Representative was doing and was going to do:  it did not confer on him any new powers.  It did not do so for the simple reason that it cannot do so:  The Peace Implementation Council, which was created after Dayton was agreed, by definition appears nowhere in Dayton itself.  The PIC was created mainly on European initiative because the Europeans resented the fact that Dayton was an almost exclusively American creation and they wanted some influence over the way the Agreement would be implemented.  

To understand the status (or rather lack of status) of the PIC, we need to remind ourselves about the circumstances in which it came into being.   Dayton having been initialled on 21 November 1995, the European powers convened a meeting of the first Peace Implementation Council at Lancaster House on 8 – 9 December.  The leader of the British delegation to the Dayton Peace Conference, Dame Pauline Neville-Jones, helped set up the PIC and even she admitted, “Everyone knew it was a phoney.”   It worked “in a legal vacuum.” (Quoted in the excellent
paper by David Chandler, From Dayton to Europe, 2004.)

This means that it is highly anomalous for the High Representative to invoke both Article 5 of Annex 10 and the so-called Bonn powers when justifying his controversial decisions to annul the decisions of parliaments or sack officials.  Yet he does invoke both these very regularly. (For a list of Decisions click
here.).  It is controversial because these are not “powers” in the usual sense of the word.  They are not specific executive competences which have been delegated but instead enabling clauses which allow him to interpret his own powers and which are therefore wielded without any judicial, political or parliamentary control.

In other words, the High Representative, an office created to supervise the transition to democracy over a period of one year, has in fact not only sucked all democracy out of Bosnia by overruling decisions taken by legally and democratically elected bodies, it has also sucked all legality out of the country too since it is a fundamental principle of the rule of law (and not just one invented by Montesquieu) that executives do not have the power to interpret and augment their own executive powers.

This situation is set to get worse. Bosnia has now embarked on the road to EU accession.  It signed its Stabilisation and Association Agreement with the EU on 16 July 2008 and ratified it in February 2009.  This signature and this ratification represented the culmination of a process which started in 2000 when, at the Zagreb summit in November of that year, the EU began its process of enlargement into the “Western Balkans” including the funding known as CARDS for Community Assistance for Reconstruction, Democratisation and Stabilisation.  Because the European Special Representative is designed to take over the functions of the High Representative when that office is eventually closed down (or rather re-branded) the near-totality of Bosnian politics will
henceforth be subject to the edicts of Brussels and to the perceived need to get the country ready for EU membership.

In particular, it is inevitable that the long pressures against the existence of the autonomous entities will continue.  In 1999, the then High Representative, Carlos Westendorp,
decreed the removal of Nikola Poplasen, the President of Republika Srpska; in 2001, his successor, Wolfgang Petritsch, sacked the Croat member of the collective BiH presidency, Ante Jelavic, who was also sacked as president of the leading Bosnian Croat political party, the HDZ ; and in 2005, Paddy Ashdown sacked Dragan Covic, again the Croat member of the collective BiH presidency.  These decisions are only the most prominent ones – hundreds of politicians and public figures have been sacked in this way over the years.  (For a full list of these decisions, see the archive on the OHR web site.)

The National Assembly resolution of 14 May 2009

The National Assembly of Republika Srpska, in its resolution of 14 May 2009, sought to put a stop to this centralising trend.  It recalled that the powers of BiH institutions are defined by the BiH constitution contained in Annex IV of Dayton, an international agreement to which Republika Srpska is a signatory, and especially by Article III of that constitution which provides that all powers not granted to the central authorities remain with the individual entities.  The National Assembly had found in an earlier study that 68 powers had been transferred to the central government of which only 3 had been approved by it according to Article III.5 of the BiH constitution.  The resolution complained that transfers of power decided by the High Representative were not in conformity with democratic principles and that they did not strengthen democratic institutions.  The Assembly said that it regarded any further such transfers by imposition to be unacceptable.  The Assembly said that any further transfers would amount to constitutional changes and that if there were to be negotiations over a new constitutions, then past changes should also be included in the discussion.  It resolved to hold an annual review on the impact of transfers and to tell its representative at the federal level to give warning of any future transfer in preparation.  The RS also encouraged the Office of the High Representative to be closed and changed into that of the EU Special Representative alone, without the power to impose solution on BiH.  The Assembly specifically called on the High Representative to abandon the so-called “Bonn powers” and it demanded that he annul past power transfers and restore the rights of private individuals who have been adversely affected by them in the human and civil liberties.
Interview with Milorad Dodik

Naturally the Bosnian Serb authorities are highly dissatisfied with the OHR Decision to annul this resolution.  The web site of the National Assemlby carries a
statement saying that it is unacceptable in a European state for the decisions of democratically elected assemblies to be overruled in this way.  Mr Dodik began by telling members of IDC that the hostile attitude of successive High Representatives seems to remain unchanged whoever is in power in Serbia and Republika Srpska – Milosevic, Karadzic, Tadic or himself.  “Our relations with the United States are at their lowest ebb,” he said, adding that anti-Americanism was rising among Serbs.  The Americans and the Europeans were pursuing the same policy as they did when Alija Izetbegovic was in power.  Even the events of 9-11, “which had their roots here in Bosnia” had not changed anything.  “We have accepted Dayton but in fact we never wanted to be in Bosnia-Herzegovina. We accepted the situation because we had no choice.”  He protested that the Western countries, especially Britain, had demanded respect for the “spirit” of Dayton rather than the letter and that they had thus taken away powers from Republika Srpska.  The worst High Representative was Paddy Ashdown.  Mr Dodik complained that under Ashdown the practice of political prosecutions had been common – not only had people been removed from their offices by OHR decrees, they had also been the victim of politically motivated criminal prosecutions.  He said that three members of the BiH presidency had been subject to such investigations before being released – Ante Jelavic, Dragan Cavic and Mirko Sarovic: this proved that the prosecutions were political because as soon as there is an indictment, one is immediately removed from office.  The prosecutors, moreover, are foreigners who do not work for the state of Bosnia-Herzegovina and who do not respect any proper judicial standards in their work.  Mr Dodik said that both Croats and Serbs in Bosnia were against such centralisation but it was being driven forward, especially by the US embassy in BiH. 

He insisted that Republika Srpska and Bosnia-Herzegovina generally are stable and have no serious problems.  The country is prosperous and there are high levels of employment.  (IDC members were able to confirm that Republika Srpska does indeed seem very prosperous, strikingly more so than Serbia itself.)  “Our problems start,” Mr Dodik said, “when we step outside Republika Srpska and face the international community.”  He said that the Bosnian Serbs and the Bosnian Croats had agreed to work together and to adopt a common approach.  (Mr Dodik is indeed very popular among Bosnian Croats and was voted Man of the Year in 2006 by
Vecernji List in Mostar. ) He said, “The destiny of the Croats in Bosnia has been a very sad one.  They were forced into a federation with the Muslims but they are always outvoted.”  Mr Dodik said that ultimately the best solution for Bosnia would be for its entities to secede but of course this could happen only through negotiation.  “Only an agreed divorce is possible.  This would be preferable to current long process of attrition.  But I know that there is no support for this in the wider world.”  Otherwise a confederal solution should be sought.  However, currently the state was moving in the opposite direction and 80% of powers were imposed from on high.  Dodik concluded by saying that the Americans were arming their enemies (the Muslims) and that the only question was when Europe would wake up to the problem, an indication of the gravity of which was given when there were riots across the largely Muslim suburbs of France in 2005.


The Dayton settlement was imposed by the international community on the warring parties on Bosnia-Herzegovina after three years of fruitless attempts at mediation.  (Indeed, there are considerable grounds for saying that foreign intervention made the situation worse.)  Croats and Serbs alike would have preferred not to belong to Bosnia-Herzegovina at all but they accepted the deal as preferable to continued war.  They did so on the basis that their autonomy would be preserved, and in the case of both ethnic groups this aspiration - and the persistent refusal of the Office of the High Representative to meet it - has led to tension between the OHR and these two groups for a decade.  It is disappointing to see the new High Representative continuing with the worst practices of some of his predecessors, and it is certainly not compatible with the best principles of democracy and the rule of law for the decisions of elected bodies to be overruled by unelected ones.  A far better outcome would be for the international community to think about ways of devolving power to all three ethnic groups in Bosnia-Herzegovina, and even perhaps of ways by which a "velvet divorce" might be achieved along Czecho-Slovak lines.

The Institute of Democracy and Cooperation is grateful to the
Lord Byron Foundation for Balkan Studies for its kind invitation to Bosnia-Herzegovina, and for arranging such interesting and high-level meetings.

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