Monthly Archives: October 2007

The Problems and Consequences of the Dayton Peace Agreement

After six weeks of intense negotiations by the leaders of Bosnia, Croatia, and Serbia, the Dayton Peace Agreement was formally signed in Paris, France, in early 1996. I have had an opportunity to review the final text of this agreement, and unfortunately it is apparent to me that the Balkans will now be entering an era of “Cold Peace.” The Clinton Administration should be commended for exercising leadership in this key region, but the “peace” that is now being implemented in the former Yugoslavia is very fragile.

The new agreement speaks of the “sovereignty, territorial integrity and political independence of Bosnia,” but it also partitions the country into two Entities (a Muslim-Croat Federation and a Serbian Republic) with three armies (“The Army of the Republic of Bosnia and Herzegovina, the Croat Defense Council Forces, and the Army of the Republika Srpska”). Each Entity will have its own citizens, parliament, and president. The two Entities will be separated by a 4 kilometer wide demilitarized “Inter-Entity Boundary” patrolled by the NATO-led Implementation Force (IFOR).

The new agreement calls for the establishment of a bicameral Parliamentary Assembly. The House of Peoples will have 15 members and the House of Representatives will have 42. Each house is divided into three equal shares based on ethnicity. Muslim and Croat members will come from the Federation, and Serbs from the Republika Srpska. Delegates to the House of Peoples will be selected by the Entity parliaments as U.S. Senators were once selected by State legislatures. Members of the House of Representatives will be elected by popular vote by ethnic constituencies. Also, the chair of each house will rotate among leaders of the three ethnic groups.

Decisions in both houses will be made by majority vote, as long as the dissenting votes do not include two-thirds or more of the members from any one of the ethnic groups. Thus the members from the Muslim-Croat Federation, who will hold two-thirds of the seats, cannot impose their will unless they gain the votes of at least one-third of the Serbian members. The same would hold true for any other alliance. Also, a majority of any ethnic delegation can declare a decision “destructive to the vital interest” of its group. This triggers the creation of a Joint Commission to negotiate a compromise. If negotiations fail after five days, the issue is referred to the Constitutional Court.

The tripartite Presidency works in a similar fashion. The Presidency “shall endeavor to adopt all Presidency Decisions by consensus.” If consensus proves impossible, decisions can be made by any two of the three leaders. However, the dissenting Member of the Presidency can then declare the decision “destructive of a vital interest” of his Entity, and if a two-thirds vote of his home Entity’s parliament confirms his objection, the Presidency Decision cannot take effect.

These elaborate procedures to protect each ethnic group from the others gives grim testimony to a lack of trust among the factions and absence of any common national feelings on which to base a “single state” version of Bosnia.

The Constitutional Court, to which disputes in the Parliament are to be referred, is an example of Bosnia’s loss of sovereignty. The court will have nine justices, limited to one five-year term. Two judges will come from each ethnic group (chosen by the Entity parliaments) and the other three will be appointed by the President of the European Court of Human Rights.

These last three, who will hold the balance of power and can form a majority with any one of the three Bosnian ethnic groups, cannot be citizens of Bosnia or any of the surrounding countries. Thus, Bosnia’s highest court, which will hear appeals from the domestic legal system and interpret all constitutional issues, will be dominated by foreign judges.

At the end of five years, the Parliament can pass a law to change how the three seats initially held by foreign judges will be filled in the future. If, however, such a law became a victim of gridlock, the foreign domination would continue.

Constitutional issues can be sent to the Constitutional Court by a Member of the Presidency, by the Chair of the Council of Ministers, by the Chair or Deputy Chair of either chamber of the Parliament or by one-fourth of the members of either chamber of the Parliament or by one-fourth of the members of either Entity parliament.

Among the issues specified for judicial review is any decision by either Entity to “establish a special parallel relationship with a neighboring state.” That is, for the Bosnian Serbs and Croats to move toward union with Serbia or Croatia. The outcome of such a review would hinge not only on internal politics but on the diplomatic considerations of the European judges.

A Central Bank is also established by the Constitution, its responsibilities to be set by the Parliament. However, for the first six years, the Governor of the bank will be an appointee of the International Monetary Fund who cannot be a citizen of Bosnia or any surrounding state. There will also be one member on the Governing Board from each ethnic group. During the first six years, the bank “may not extend credit by creating money,” a prohibition that is consistent with the IMF’s propensity for austerity policies.

Annex 6 of the Dayton Accord establishes a Commission on Human Rights and gives it a mandate to enforce the rights listed under Article II of the Constitution, which are repeated in the annex. This mandate is extremely broad, running to the consideration of “alleged or apparent violations of human rights are provided in the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto” and “alleged or apparent discrimination on any grounds such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status arising in the enjoyment of any of the rights and freedoms provided for in the international agreements listed in the Appendix.”

The Human Rights Commission has two organs. The Ombudsman will conduct investigations, issue reports and recommendations, and refer cases to the Human Rights Chamber for judgment and remedies. For the first five years, the Ombudsman and the Chamber will be dominated by foreigners. The Ombudsman will be appointed by the Chairman-in-Office of the Organization for Security and Cooperation in Europe and may not be a citizen of Bosnia or any surrounding state.

The Chamber will have 14 members; two from each Bosnian ethnic group and the remaining eight appointed by the Committee of Ministers of the Council of Europe. This European-appointed majority cannot be citizens of Bosnia or any surrounding state. After the five-year transition period, the Ombudsman and Chamber members will all be appointed by the tripartite Presidency of Bosnia and Herzegovina.

The Human Rights Commission will have very broad powers. The Ombudsman “shall have access to and may examine all official documents, including classified ones, as well as judicial and administrative files, and can require any person, including a government official, to cooperate by providing relevant information, documents and files.” A party “identified as violating any human rights shall, without a specified period, explain in writing how it will comply with the conclusions” of the Ombudsman.

In the event “a person or entity does not comply with his or her conclusions and recommendations” the Ombudsman can forward a report to the High Representative; that is, to the person who will serve as the U.N. Security Council’s colonial governor of Bosnia (despite Clinton’s claim that IFOR is a NATO operation, Article VI of Annex 1-A seeks to justify intervention under Chapter VII of the U.N. Charter, as were the other “peace enforcement” operations in Somalia and Haiti).

The High Representative is “the final authority in theater” regarding the interpretation of the civilian aspects of the Dayton Accord. He will monitor the peace settlement; promote compliance by the Entities and coordinate the activities of all civilian organizations and agencies in Bosnia and Herzegovina. The High Representative will also chair the Joint Civilian Commission which will include representatives from the Bosnian government, the Entities, the IFOR commander and “those civilian organizations and agencies the High Representative deems necessary.”

This position will represent very significant authority in Bosnia and Herzegovina. The High Representatives can even set up local versions of the Joint Civilian Commission anywhere in Bosnia and establish other commissions as needed to “facilitate the execution of his or her mandate.”

The High Representative will give “guidance” to the U.N. International Police Task Force (UNIPTF) which, in turn, will advise, train, monitor and inspect all law enforcement activities and facilities, including associated judicial organizations in Bosnia and the Entities. Bosnia and the Entities will “upon request by the UNIPTF…make available for training qualified personnel.” Any failure to cooperate with the UNIPTF or to obstruct its operation will result in a complaint to the High Representative and the IFOR commander.

IFOR is the muscle behind any policies pursued by the civilian administrators. The greatest danger of renewed war will come from any concerted movement of refugees across the partition lines to reclaim lost territory. The possible use of refugees as a tool to expand the domain of the Bosnian regime was raised by Bosnian Ambassador-at-Large Mohamed Sacirbey at Brown University on November 30.

“It is not a just peace,” said the Ambassador. “We don’t want to be divided… We don’t want paper with signatures, we want…freedom of movement and the right to return to home villages.” It is well known that such a “peaceful” invasion would be resisted. Refugees are unlikely to cross the lines without armed escorts, but neither the Federation nor the Republica have the strength to carry out such an expansionist policy.

With the constitution, police, central bank, refugees and “human rights” in the hands of foreign officials for the rest of the century, it is difficult to describe Bosnia and Herzegovina as a “state” in any meaningful sense. It has been turned into an international protectorate at best, or a laboratory for political and social experimentation at worst.