Does Bosnia and Herzegovina still need the OHR?

Transcription

1 MASARYK UNIVERSITY FACULTY OF SOCIAL STUDIES Department of International Relations and European Studies Does Bosnia and Herzegovina still need the OHR? (Bachelor Thesis) Jelena Jovanović Supervisor: Vladimir Đorđević Student (UČO): Field of study: International Relations Year of Enrolment: 2010 Brno 2013

2 Prohlašuji, že jsem tuto bakalářskou práci vypracovala samostatně a výhradně s použitím zdrojů uvedených v seznamu literatury a pramenů. Brno, 30. duben Jelena Jovanović 2

3 Acknowledgment I wish to express my profound thanks to my thesis supervisor Bc. Mgr. Vladimir Đorđević, for his patient guidance, ideas and useful advice. Thanks for the wonderful job he did in his careful reviews through all drafts of the paper, searching for all kinds of slip-ups and making invaluable suggestions for improvement. I offer a special word of gratitude to my family and my close friends for their constant encouragement and support. 3

4 Content: 1. Abbreviations Introduction Methodology Research Questions Case Study Author s Methodological Reflection Structure of the Thesis Historical Introduction and the Political Structure of BiH The Emergence of the Bonn Powers A Short Overview of High Representatives and their Use of the Bonn Powers The Issue of EU integration The International Community The Bonn Powers The High Representative s Power to Enact Legislation The 5+2 Agenda and the International View on the Closure of the OHR Governments of the Republic of Srpska The Bonn Powers The Power to Enact Legislation EU Integration Seen through the Issue of OHR Closure Author s View on the Role of the OHR The Bonn Powers The High Representative s Power to Enact Legislation From Dayton to Brussels Conclusion Bibliography:

5 1. Abbreviations BiH Bosnia and Herzegovina ECHR European Court of Human Rights EU European Union EUSR European Union Special Representative ICG - International Crisis Group ICTY International Criminal Tribunal for the former Yugoslavia HR High Representative MIP Mssion Implementation Plan NATO North Atlantic Threaty OHR Office of the High Representative PIC Peace Implementation Council PIC BP - Peace Implementation Council Board of Principlas SAA Stabilization Association Agreement UN United Nations UNSC United Nations Security Coucil 5

6 2. Introduction The state of Bosnia and Herzegovina (BiH) represents a unique state in the world, not just because of its political situation, but also because of its governmental system, which was created by the General Framework Agreement for Peace (GFAP, later on known as the Dayton Agreement) of 1995, in order to cease the bloodshed of the previous three years. During the peace negotiation process in Dayton, member states of the EU were dissatisfied with the fact that they were marginalized by the USA, so they suggested that the UN should be the organization which would monitor the implementation of the agreement. However, when the USA rejected that idea, the EU states decided to create the Peace Implementation Council (PIC), where the High Representative (defined by Annex 10 of the Dayton Agreement, henceforth also HR) was given political leadership to coordinate national and international actors in the implementation of the agreement,. Even though the initial plan was that international supervision would last just for one year, namely until the elections in 1996, this did not happen. The reason for that was the fact that the change in political structure which member states of the PIC were hoping for did not materialize, and the same political leaders who led the war were re-elected. Therefore instead of the closure of the Office of the High Representative (OHR) in 1997, its mandate was prolonged indefinitely; more importantly, the HR was granted more powers that became known as the Bonn Powers, with which he was empowered to fire and take other actions against local leaders and parties that would threaten the implementation of Peace Agreement, as well as to impose legislation in order to implement and to bring democratic reform to BiH. Nonetheless, while according to some the OHR is what holds BiH together, (since the OHR plays an important role when it comes to normalization of situation in the state), according to others, the OHR is seen as a cancer of the BiH body politic, since this institution took over the job of the local government to lead the state. Therefore, the question which arises is whether or not the OHR still has some purpose in BiH, since we can say that over-reliance on the international community made local institutions weak, while at the same time the accent from the peace implementation of Dayton Agreement was moved to Euro-Atlantic integration. This question will be addressed with the hypothesis that the OHR must be closed if BiH wants to become a self-sustained sovereign state ready for EU integration. 6

7 The topicality and seriousness of the topic are the main motivation for this thesis, since this topic is one of the most discussed topics within the state of BiH. On one hand, the closure of the OHR could represent a milestone for BiH on its road towards EU integration, since that would be proof that BiH is ready to be a self-sustaining, sovereign state that does not need international supervision. On the other hand, closure of the OHR could represent a risk for the international community since if the OHR is closed at a point when local politicians are not ready to take full responsibility for their actions, it could mean that the international community failed to accomplish its mission of creating a fully democratic state ready for EU integration. This thesis will try to give different perspectives on this issue, which next to the theoretical background will also use a qualitative analysis of the primary sources published by the Council of Europe and the Government of the Republic of Srpska. 3. Methodology 3.1.Research Questions From 1995 until 2012, seven different international politicians had the post of High Representative, and even though their role to secure the implementation of Dayton Agreement had been established with the Annex 10 of the peace agreement, each one of them contributed differently to the implementation of the civilian aspects of the Peace Agreement on behalf of the international community. Even though some of the decision made by the HR improved the situation in BiH, contributing to peaceful resolution of some disputes, at the same time local politicians became too dependent on the HR in cases of hard decisions the HR was the one to solve these issues, eventually leading to BiH over-reliance on the OHR. Therefore the main working hypothesis of this thesis is that: the OHR must be closed if BiH wants to become a self-sustained sovereign state ready for EU integration. This will be addressed by these research questions: * Despite the fact that role of the HR was established under Annex 10, can we say that some of its decisions were not in compliance with Annex 10? * Did the existence of the OHR enable greater democratic development of BiH after the war or did it create a protectorate out of BiH? 7

8 * Can we say that the BiH path towards EU integration is hindered by the existence of the OHR? The reason why in addition to self-sustainability I present EU integration as a primary aim is the fact that the overall thrust of the EU s Balkan policy has moved from a security agenda to an agenda focused on the perspective of Western Balkan states accession to EU, to which there has been a formal political commitment on the part of EU states since the Thessaloniki Summit in June Hence, like all of the Western Balkan states, BiH also sees itself as a part of the EU family. In order to answer these questions the thesis uses the qualitative case study, which will enable us to facilitate exploration of a phenomenon within its context using a variety of data sources. This kind of approach will ensure that the issue is not explored only through one lens, but rather a variety of lenses, in this case those of the international community and the Government of the Republic of Srpska, in order for the issue to be more fully revealed and understood. 3.2.Case Study There are two key approaches that guide case study methodology; one is proposed by Robert Stake and the second by Robert Yin. Even though both seek to ensure that the topic of interest is well explored, the methods that they employ differ. However, they both base their approach to case study on a constructivist paradigm, meaning that the truth is relative and that it depends on one s perspective. The advantage of this approach for this thesis is that it enables us to describe different views of reality, and from that to get a broader understanding of the issue concerned. Moreover, in order to avoid answering on a topic that it is too broad and to ensure that thesis remains reasonable in scope, we have to place some boundaries on a case. Yin and Stake suggest three types on how to bind a case: (a) by time and place; (b) time and activity; and (c) by definition and context 1, but for the purpose of this thesis we have chosen the second type: time and activity. Therefore this thesis will address the period from 1995 until 2012, while addressing the issue and emergence of the Bonn Powers and the issue of legislative decisions and EU integration, namely the 5+2 Agenda. 1 Baxter, P., & Jack, S. (2008). Qualitative case study methodology: Study design and implementation for novice researchers. The Qualitative Report, 13(4), Retrieved from 8

9 When it comes to type of case study, this thesis employs Stake s selection of specific types, in which he identifies case studies as intrinsic, instrumental, or collective. For the purpose of the thesis, we have chosen the intrinsic type, since Stake suggests that researchers who have a genuine interest in the case should use this approach when the intent is to better understand the case. It is not undertaken primarily because the case represents other cases or because it illustrates a particular trait or problem, but because in all its particularity and ordinariness, the case itself is of interest. The purpose is not to come to understand some abstract construct or generic phenomenon, nor is it to build theory Author s Methodological Reflection This thesis will address the issue of the HR, and in particular whether or not BiH still needs it. In order for this to be done, I present different views of reality through the international community perspective and through the perspective of the Government of the Republic of Srpska. These views will be evaluated through official documents that serve as main resources: the Opinion of the Venice Commission on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, and the Report of the Government of Republic of Srpska to the Security Council of UN. The reason why these two primary sources have been chosen as the main sources is the fact that they represent official views of the international community and Government of Republic of Srpska. The reason why only the point of view of one entity but not the whole state is discussed is because the Government of the Republic of Srpska is the only one that issued an official statement regarding the role of the OHR, while the views of the Federation of BiH and the state as a whole were never officially declared. Therefore, the evaluation of any stance on the role of the OHR by politicians from the Federation would be just an evaluation of a statement of some political party, meaning that this kind of evaluation would not bring us a third point of view that could been perceived as an official stand point of Federation on the issue of the HR. Nevertheless, the thesis will include some of the statements of members of Bosniak and Croatian political parties in BiH, with the purpose of giving a more insightful picture on the different perspectives on the role of HR that are present in the state of BiH as whole; however, since these statements will not be presented as official positions, they are included only as additional information to support certain arguments. Hence, the main documents to be 2 Ibid.1 9

10 evaluated are complemented by other sources such as the official internet page of the OHR, a Resolution of the Council of Europe, the International Crisis Group Report from 2009, information from the US Congressional Research Service from 2012, reports from CEPS (The Centre for European Policy Studies), press releases of the Croatian Democratic Union of Bosnia and Herzegovina, and other materials. As has already been stated, for a thesis to remain reasonable in scope, we have to place some boundaries on any given case. Hence, in addition to the time boundary, ( ) certain issues will be analyzed assessed using the sources discussed above. These include the legislative dimension (Annex 10, Bonn Powers) and the High Representative s power to enact legislation and EU integration (5+2 Agenda). All of this will be done with the goal of answering the above research questions, which will in turn help us to address the main working hypothesis that the OHR must be closed if BiH wants to become a self-sustained sovereign state ready for EU integration. This kind of hypothesis will be followed by an evaluation by the author of the statement that even though the HR had an important role at the beginning of its mandate in 1995, because it assisted in the peaceful implementation of the Dayton Agreement, in 2012 his role and decisions have led to the dysfunctionality of domestic political institutions since these problems are solved by someone else; thus the closure of the OHR would be a milestone for BiH on its road towards EU integration. In order for this statement to be confirmed, the author s assessment is based purely on a critical evaluation of the different perspectives of the international community and the Government of the Republic of Srpska, because this kind of evaluation presents us two sides of the same coin. Based on whose arguments reveal the more plausible position, we can validate or reject the statement. 3.4.Structure of the Thesis The thesis is divided in ten parts where the fourth part, which is followed by formal introduction and methodology, gives us a brief overview on the conclusions of the Dayton Agreement, and it outlines the political structure of BiH that was created with the Constitution of BiH under Annex 4. Moreover, readers will get an insight into the different layers of governance that represent a power-sharing agreement of three constitutive ethnicities that exist in BiH, where in addition to the combined Presidency, two autonomous ethnicities, and one district, there is also an international factor as one layer of governance. 10

11 This international factor is the OHR, established by Annex 10 of the Dayton Agreement and which is the main coordinating body for the international community, since the HR is also the chairman of the Peace Implementation Council Board of Principals (PIC BP). The PIC BP was established in 1995 to mobilize international support for the Agreement. The fifth part addresses Annex 10 of the Dayton Agreements as well as the Bonn Powers that were granted to the HR as a result of the unsuccessful democratic elections in 1996 that brought war-oriented nationalist parties to power. As we well see, exactly these powers represent one of the most disputed aspects of the role of the HR by international comunity and the Government of the Republic of Srpska, since with them the HR was granted the final authority in theater regarding interpretation of the Dayton Agreement. The sixth part of the thesis gives a short overview of seven High Representatives that overseen the Dayton Agreement, as well as their use of the Bonn Powers. The majority of attention will be paid to the decisions made by Paddy Ashdown, since it was during his mandate that BiH was perceived as international protectorate due to different reforms that he implemented, namely judicial reform in 2002 and the removal of 60 Bosnian Serb politicians from office in In addition, the thesis briefly turns to the EU decision to appoint the HR to the post of EU Special Representative to Bosnia and Herzegovina. This will demonstrate how the HR has been used as a tool of the international community to resolve the issues in the early days of BiH statehood, as well as to initiate reforms that were considered vital for the sustainability of BiH. The seventh section will introduce the changed agenda in the politics of BiH, where the content of the Bonn Powers has been replaced with EU integration. With this changed agenda the question of the closure of the OHR was raised for the first time, conditional on the fulfillment of the 5+2 Agenda which was presented by the PIC in The eighth and ninth part present a qualitative analysis of the main sources mentioned above, where the issues regarding the role of HR have been analyzed from the point of view of the international community and Governments of Republic of Srpska. These views are analyzed through the following issues: the Bonn Powers, the HR s power to enact legislation, and the 5+2 Agenda. This section is followed by the author s evaluation of the analyzed parts from the previous two chapters, where the analysis will follow the previous pattern of analyzing the issue 11

12 through three different problems (the Bonn Powers, the HR s power to enact legislation, and the 5+2 Agenda ). All of this will be done with a purpose to give a specific opinion on the issue of the HR as well as to address the working hypothesis, where all of the arguments will be supported with certain extracts of the analyzed documents. This section will be followed by the final conclusion, where firstly a short reflection on the issue will be given followed by a closing argument employing the case study methodology. 4. Historical Introduction and the Political Structure of BiH In order to understand the complex issue of the role of the HR in BiH, we first have to analyze the politics and governance in BiH within the historical context of the disintegration of Yugoslavia. The official proclamation of BiH independence came with a referendum held in 1991 where Croats and Bosniaks voted for independence, which was eventually recognized by the European Community on 7 April However, that referendum was boycotted by Bosnian Serbs due to the fact that they wanted to remain within Yugoslavia, so even at the very beginning the perspectives on the future of BiH were different, culminating in 1992 when civil war erupted. The war lasted for three years, until NATO military intervention forced the warring parties to negotiations. These negotiations were held in Dayton, Ohio (USA) from 1-21 November 1995 and led by U.S. Secretary of State Warren Christopher, and negotiator Richard Holbrooke with two Co-Chairmen: EU Special Representative Carl Bildt and First Deputy Foreign Minister of Russia Igor Ivanov. Nevertheless, the main participants were the President of the Federal Republic of Yugoslavia Slobodan Milošević, who represented Bosnian Serb interests, the President of Croatia Franjo Tuđman, and the President of Bosnia and Herzegovina Alija Izetbegović. Even though the agreement was reached on 21 November 1995, it was officially signed in Paris on 14 December With this Agreement, peace between three warring ethnic groups was established and the state of BiH as we know it today was created. In order for all three parties to be satisfied and to avoid emergence of some future conflict, this agreement created a unique political structure, which is established under Annex 4 - Constitution of BiH. Under Article I (2) of the Constitution it is stated: Bosnia 3 United Nations, General Assembly Security Council, Fiftieth session Agenda item 28 The Situation in Bosnia and Herzegovina, S/1995/999, 30 November 1995 < 12

13 and Herzegovina shall be a democratic state, which shall operate under the rule of law and with free and democratic elections. 4 Hence, the Constitution recognizes that the institutions of the State coexist with democratic institutions that are established within the Entities: the Federation of Bosnia and Herzegovina (51% of the territory) and the Republic of Srpska (49% of the territory); 5 in other words, both entities were granted substantial autonomy. The decentralization of the state is demonstrated by the fact that even the entities are constituted differently one is a loose federation consisting of 10 cantons and two predominant nations, while the other is a formally centralized republic with one dominant nation. Nevertheless this asymmetry is even more augmented with the creation of a third separate unit the Brčko district in 1999, which is de jure subordinated to the entities. 6 Additionally, democracy within BiH is demonstrated through equal representation of all three ethnic groups (Bosniak, Croat, and Serb) within the Parliamentary Assembly, which is composed of the House of Peoples and a House of Representatives. Moreover, instead of one president, BiH has a Presidency that consists of one member of each ethnic group, and each of them has veto power over any legislation. 7 Bearing these layers of government in mind, it is clear that the state as such cannot function, since each of three constituent nations enjoys different degrees of political representation and each of them has different aspirations, where Bosniaks support a strong state over selfgovernment, while Serbs seek Serb self-rule with a maximum degree of autonomy. What is interesting to mention here is that in recent years, leaders of Bosnian Croat Parties have called for an amendment to the constitution that would enable the division of BiH into at least three entities, where one of them would be for their ethnic community. The reason for this is that they find the current scheme marginalizes Croats and denies them the same rights enjoyed by Bosniaks and Serbs. 8 4 Office of the High Representative. The General Framework Agreement: Annex 4: , accessed 28 January, ,< 5 Lester H. Brune, Chronological History of U.S. Foreign Relations Volume III Routledge. pp Office of the High Representative, Statute of the Brcko District of Bosnia and Herzegovina 7 December 1999 < 7 Ibid 4. 8 Bosnian Croats demand own entity, SETimes.com, 19 April, Accessed on 1 February 2013 < 13

14 As a result, the only areas in which the state of BiH must have unified views are issues regarding foreign policy, external trade, customs, monetary policy, and international inter- Entity criminal law enforcement. In addition to all of this, the Constitution provides that: The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina and that these rights have priority over all other law. 9 In other words, the Constitution has bound BiH with 15 other international human rights agreements, that have become a permanent feature of the Bosnian political arena which cannot be changed: No amendment to this Constitution may eliminate or diminish any of the rights and freedoms referred to in Article II of this Constitution or alter the present paragraph. 10 Hence, as we can see, this was not a temporary measure but a permanent one that enabled the international community to have control over the state vis-à-vis the democratic institutions. The final touch on the political structure of the BiH government created by Dayton Agreement, was the Annex X with which the Office of High Representative was created. Under Article I of this Annex, HR has to be appointed consistent with relevant United Nations Security Council resolutions, to facilitate the Parties' own efforts and to mobilize and, as appropriate, coordinate the activities of the organizations and agencies involved in the civilian aspects of the peace settlement. 11 Moreover, under the Article V of the Annex, (Authority to Interpret): HR is the final authority in theater regarding interpretation of this Agreement on the civilian implementation of the peace settlement. Hence, in other words, the OHR was tasked with civilian matters in BiH where all of his responsibilities and decisions were supported internationally, namely by the Peace Implementation Council. This Council was established in 1995 at the Peace Implementation Conference in London, and it was decided that the Council would give international support for the Dayton Agreement. The Council consists of 55 countries (PIC Members and Participants: PIC Observers), though the most important are the members of the Steering Board, which was established to work under the chairmanship of the High Representative as the executive arm of the PIC. Steering Board members are Canada, France, Germany, Italy, Japan, Russia, the United Kingdom, the United States, the Presidency of the European Union, the European 9 Ibid.4 10 Ibid.4 11 Office of the High Representative, Annex 10: , accessed on 1 February 2013 < 14

15 Commission, and the Organization of the Islamic Conference (OIC), which is represented by Turkey The Emergence of the Bonn Powers All of these measures of power-sharing were created with the aim of creating a functional democratic state where all three constitutive nations would have equal representation of their interests. While in theory this seemed plausible and logical, soon this equal representation turned out to be one of the main problems. The reason for this, as Lijphart suggests, is that in power sharing agreement the representative should represent their respective community and any dilution of the principle might undermine their legitimacy and ability to negotiate with other groups representatives on behalf of their group. 13 Bearing this in mind, people started to support their ethnic representatives regardless of their interests, since it seemed that people believed that only their politician would represent interests of their ethnicity and that members of any other ethnicity would not be able to represent interests of an ethnicity that he does not belong to. The reason for this is the fact that all of the politicians within the state still base their political campaigns on war rhetoric; therefore, it is understandable that there are not a lot of cases, if any, where a Serb would vote for a Bosniak or vice versa. This kind of problem was demonstrated at the very beginning, in the first post-war general elections in 1996, when 75% of those who voted opted for nationalist parties; Bosniaks voted for the Party of Democratic Action (Stranka demokratske akcije or SDA), while Serbs opted for the Serbian Democratic Party (Srpska demokratska stranka or SDS), and Croats for the Croatian Democratic Union (Hrvatska demokratska zajednica or HDZ). 14 Hence, these elections legitimized and reinvigorated parties that had a near monopolistic stranglehold on their respective national constituency, since these parties were more interested in promoting secessionist goals along ethnic lines, rather than building a new Bosnian state. 12 Office of the High Representative, OHR General Information, accessed on 3 February, < 13 Arend Lijphart, The Power-Sharing Approach, in Conflict and Peacemaking in Multiethnic Societies, ed. Joseph V. Montville, New York: Lexington Books, 1991, pp International Crisis Group, Elections in Bosnia and Herzegovina, CG Bosnia Report no.16., 22 September 1996., accessed on 5 February, < 15

16 We can say that with this kind of results, citizens of BiH voted for the wholesale destruction of their homeland, and the international post-war reconstruction exercise on democratic multiparty elections did not succeed. More importantly, the main aim of the international community, which was the replacement of wartime elites with new ones and the building of democratic BiH where there would be no need for an international peacekeeping force, was not fulfilled. Bearing this in mind, it is quite understandable that the international community decided to take some radical steps in order to fulfill its aims and in order to secure peace in BiH, and that step that changed the perception on the role of IC in BiH, was presented at the PIC Conference in Bonn on 9 and 10 December At this conference, the PIC Council stressed that the HR ensured the creation of conditions for a self-governing democracy in BiH, but it also stated that Much more could have been achieved had the authorities in Bosnia and Herzegovina contributed their full share to the construction of a civil and democratic society in the country 16 Therefore it did not come as a surprise when the PIC made the decision to grant the HR some new powers that became known as the Bonn Powers. In doing so, the PIC decided that from now on the HR would be the final authority in theater regarding interpretation of the Dayton Agreement in order to facilitate the resolution of difficulties by making binding decisions, as he judges necessary, on the following issues: a. Timing, location and chairmanship of meetings of the common institutions; b. 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; c. 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 Office of the High Representative, Summary of Bonn Conclusions, 10 December, < 16 Ibid Office of the High Representative, PIC Bonn Conclusions, 10 December, < 16

17 As we can see, the PIC officially welcomed the HR s intention to exercise final authority regarding the interpretation of the Dayton Agreement; that was subsequently legitimized by UNSC Resolution 1144, which was adopted on 19 December From this we can see that the OHR s mission relies on international support, so OHR policies must respond to international opinion, while at the same time the HR answers to no one within BiH. 6. A Short Overview of High Representatives and their Use of the Bonn Powers Seven HR have overseen BiH since the Dayton Agreement; the first was Carl Bildt, who was succeeded by Carlos Westendorp as the first HR who had the opportunity to use the Bonn Powers. Westendorp explained the situation, noting that You do not have power handed to you on a platter, you just seize it, if you use this power well no-one will contest it. 19 These powers have been regularly used to impose legislative measures against the will of elected bodies, and up to now more than 800 decisions have been issued, including the removal of Bosnian public officials, members of the Presidency, Entity Prime Ministers, and others. Even by March 1999, Westendorp was dismissing public officials, such as Republic of Srpska (RS) President Nikola Poplašen, for Poplašen s attemptsto unseat RS Prime Minister Milorad Dodik. 20 Moreover, during his mandate, SFOR peacekeepers were stationed in BiH to maintain order, and their presence provided a physical means of force to the OHR. Westendorp was succeeded by Wolfgang Petritsch, who encouraged the development of nonnationalistic parties such as the Alliance for Change coalition in November However, this did not last for long, since soon nationalistic parties returned to power. Paddy Ashdown became HR in 2002, and was one of the most controversial HRs with respect to the decisions that he made. From the very beginning, he was criticized for prolonging the 18 UN Security Council, Resolution 1144 (1997) Adopted by the Security Council at its 3842nd meeting, on 19 December 1997, 19 December 1997, S/RES/1144 (1997) < accessed on 10 February David Chandler, Bosnia: Faking Democracy after Dayton, 2nd ed. (London: Pluto Press, 2000.) p Human Rights Watch, Human Rights Watch World Report Bosnia and Herzegovina, 1 December 1999, < accessed 10 February, International Crisis Group, Bosnia s Nationalist Governments: Paddy Ashdown and the Paradoxes of State Building. Balkans Report N 146, 22 July < Accessed on 10 February

18 use of the Bonn Powers. The European Stability Initiative was one of the most vocal think tanks against the Bonn Powers, and referred to Ashdown as an imperialist who ruled Bosnia as a raj and according to whom the existence of Bonn Powers was just prolonging the international protectorate of BiH 22. Moreover, it was argued that powers of the OHR have oftentimes been used for political convenience, as demonstrated in the case of judicial reform in With this reform, in order to root out corruption, the OHR decreed that all judges, even the ones that had been granted life tenure, must resign and reapply for their positions. It is interesting to mention that even the Council of Europe was concerned with this reform as it was stressed in the letter of Secretary General Walter Schwimmer, explaining, You certainly understand that such radical measures may seriously affect one of the cornerstones of democracy, which is judicial independence. This is true in all democracies, be they new or old. Irremovability is a key characteristic of judicial independence Of course all democracies have established rules allowing the removal of judges who are unfit for their position. Such rules however guarantee due process and the Rule of Law. 23 Nevertheless, the problem with these reforms was that the BiH Constitutional Court lost its authority, since after the Court proclamation that the actions of the HR were unlawful, the HR prohibited enforcement of the decision and further decreed that henceforth: Any proceeding instituted before any court in Bosnia and Herzegovina, which challenges or takes issue in any way whatsoever with one or more decisions of the High Representative, shall be declared inadmissible unless the High Representative expressly gives his prior consent. 24 However, what was more troubling was that the OHR s actions were unilateral, without any consultations with the local governments. Despite the criticism, and due to a belief that local politicians were destroying the successful implementation of the Dayton Agreement, Ashdown removed 60 Bosnian Serb politicians from office in Another important aspect of the HR was the decision of the European Union s General Affairs Council (GAC) to appoint the HR as the EU s Special Representative in Bosnia and 22 European Stability Initiative, Open Letter to Lord Ashdown, Sarajevo, July 16, < accessed on 10 February Council of Europe, Bosnia and Herzegovina - the Council of Europe's contribution to the judicial reform, Secretary General, SG/Inf(2002), March, 2002.< accessed on 11 February European Court of Human Rights Fourth section Decision As to the admissibility of Application nos /04, 36360/04 ( ) 25496/05 by Dušan BERIĆ and Others against Bosnia and Herzegovina lodged between 21 September 2004 and 4 June 2005,< Accessed on 10 February Ashdown sacks 60 Serbs over Karadzic, Telegraph.co.uk, 30 June < accessed on 12 February

19 Herzegovina in February This decision was visualized as an arrangement which would help the shift of political focus from Dayton implementation to the EU integration process. Hence, in 2006, Christian Schwarz-Schilling replaced Paddy Ashdown as both HR as well as the EU s Special Representative in Bosnia and Herzegovina; in contrast to his predecessor, he was more welcomed by Bosnian people. During his mandate, OHR legislative initiatives tapired off, and for the first time the EU announced its decision to shut down the OHR by June Consequently, Miroslav Lajčák, who succeeded Christian Schwarz-Schilling, was supposed to be the last HR. However, in contrast to Schwarz- Schilling, Lajčák had a more intrusive approach in the work of the OHR, so he received unenthusiastic support not only from the local community but also from the international one. The best proof of this is when EU ignored OHR attempts to force local elites to reform police boundaries in order to finalize the conditions that were necessary for the Stabilization and Association Agreement, by signing the SAA with BiH without the required reforms. 28 Nevertheless, Miroslav Lajčák was the first HR to resign from this function, and in 2009 he was succeeded by Valentin Inzko during whose mandate the role of HR and EUSR was decoupled, and Peter Sørensen took over the position of EUSR The Issue of EU integration For the last seventeen years, the OHR has been the main international institution assisting local government in implementing the Dayton Agreement. However, as the idea of EU integration has become more vivid, a broad consensus has emerged within the international community that it is time for local authorities to stand on their own feet and to take full responsibility for finding the solutions, in order to finally establish a fully democratized state that is not perceived as a protectorate. This kind of thought was presented by Wolfgang 26 Europa.eu <2409thCouncil meeting General Affairs - Brussels, 18/19 February 2002, reference: PRES/02/30 < accessed on 12 February Profile: Christian Schwarz-Schilling. BBC News, 30 January < accessed on 13 February International Crisis Group, Bosnia s Incomplete Transition: Between Dayton and Europe - Europe Report N March < between_dayton_and _europe.pdf> accessed on 13 February European Union External Action, EU Special Representative in Bosnia and Herzegovina, < accessed on 13 February

20 Petrich in his speech at the Steering Board Ministerial Meeting in 1999, when he presented the concept of Ownership. 30 This concept, as Petrich suggested is in contrast to what he called dependency syndrome. As he explained, This means that every piece of legislation that I impose with my authority as the High Representative gives politicians in Bosnia and Herzegovina a perfect excuse not to do their job properly. The Bosnians have to take ownership of the progress of their country. My job is to ensure that the direction in which they go is that of a proper European country. 31 Therefore already in 2002 the EUSR was entrusted with replacing the strong push power of the OHR with the soft pull power of the EU, with the intention of helping BiH on its road towards EU integration. At this point, the OHR decided to identify the core tasks it must concentrate on to accomplish its mission, and these were presented as a part of the Mission Implementation Plan (MIP) on 30 January Even though the MIP was updated in 2006 and regardless of its level of implementation, on 23 June 2006, the Political Directors of the PIC Steering Board (PIC SB), for the first time formally announced that the OHR would be closed on 30 June 2007, and BiH would take full responsibility for its own affairs. At the same time, the PIC SB agreed to review and confirm the OHR closure in early However, the election results in 2006 spoiled that plan, since nationalist rhetoric sharpened and the overall political situation in the state seemed to get worse. Taking this into consideration, the PIC SB decided against confirming OHR closure in 2007, and the date was moved to 30 June However, by that time, the terminology was changed and now the PIC started to talk about transition instead about the closure of the OHR, and the PIC would be the agency to assist BiH on its road towards EU integration. The change of this rhetoric was presented on 26 and 27 February 2008 in Brussels when the PIC SB, instead of 30 Office of the High Representative, Speech by the High Representative for Bosnia and Herzegovina, Ambassador Wolfgang Petrich at the Steering Board Ministerial Meeting, New York < on 15 February Ibid Office of the High Representative, OHR Mission Implementation Plan, < accessed on 15 February Office of High Representative, Communiqué by the PIC Steering Board, < accessed on 15 February

21 talking about the closure of the OHR, set out the requirements of the 5+2 Agenda, 34 which would need to be met by the BiH authorities prior to the closure of the OHR. These requirements were: The Acceptable and Sustainable Resolution of the Issue of Apportionment of Property between State and other levels of government; The Acceptable and Sustainable Resolution of Defense Property; The Completion of the Brčko Final Award; Fiscal Sustainability (promoted through an Agreement on a Permanent ITA Coefficient methodology and establishment of a National Fiscal Council); and The Entrenchment of the Rule of Law (demonstrated through Adoption of National War Crimes Strategy, passage of Law on Aliens and Asylum, and adoption of National Justice Sector Reform Strategy). In addition to these objectives, the PIC SB agreed that two conditions need to be fulfilled prior to OHR closure: Signing of the SAA; and A positive assessment of the situation in BiH by the PIC SB based on full compliance with the Dayton Agreement. However, the main problem with this 5+2 Agenda is that some of the conditions do not have anything in common with Dayton Agreement, since some of the aims (e.g. the establishment of a National Fiscal Council) were taken from other documents of EU, such as the European Partnership with Bosnia. 35 Hence, over time the Dayton Agreement became subordinate to the requirements for successful EU integration, and its unfulfilled parts remained in the shadow of the 5+2 Agenda. 34 Office of the High Representative, Declaration by Steering Board of the Peace Implementation Council, PIC SB POLITICAL DIRECTORS 27/2/2008 < accessed on 15 February Direkcija za evropske integracije, Akcioni plan za realizaciju prioriteta iz dokumenta Evropsko partnerstvo sa Bosnom i Hercegovinom < accessed on 15 February

22 8. The International Community One of the international organizations that dedicated its report to the role of HR is The European Commission for Democracy through Law (better known as the Venice Commission) which was established in This commission consists of an advisory body to the Council of Europe on constitutional matters, and it has played a leading role in the adoption of constitutions that conform to the standards of Europe s constitutional heritage. It is composed of independent experts who have achieved eminence through their experience in democratic institutions or by their contribution to the enhancement of law and political science (Article 2 of the Revised Statute). 36 During its 62 nd plenary session held in Venice on March 2005, the Commission delivered its Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, in which the sixth article of the Opinion was dedicated to the compatibility of the powers of the HR with standards of the Council of Europe. 37 This compatibility was evaluated by the Commission in different areas, though the emphasis was given to the Bonn Powers and to the legislation that was enacted by HR, while the opinion on the closure of the OHR was addressed in the context of the 5+2 Agenda. 8.1.The Bonn Powers In its Opinion, the Venice Commission recalled the powers that were given to the HR by Annex 10 of the Dayton Agreement, as well as the Bonn Powers on which the HR imposed legislation, both at the state level and within the Entities, including amendments to the Entity constitutions and other changes. The widely shared opinion in the international community is that all of these actions have been beneficial for BIH, since it helped the state to achieve some progress in building of democratic institutions. Notwithstanding, the Parliamentary Assembly of the Council of Europe in its Resolution 1384 (2004) recalled its Opinion No.234 (2002) on BiH in which it stressed that the state institutions should be strengthened at the expense of 36 Council of Europe, Venice Commission Presentation, < accessed on 16 February Council of Europe, European Commission for Democracy through Law (Venice Commission), Opinion on the Constitutional Situation in Bosnia And Herzegovina and the Powers of The High Representative, CDL-AD (2005) 004, 11 March 2005 < e.aspx> accessed on 16 February

23 the institutions at Entity level, if need be by a revision of the constitution, 38 and it emphasized that as of 2004 strengthening of the institutions was proceeding very slowly under the pressure of the international community, particularly through the action of the OHR. More importantly, the Council of Europe stressed that it is irreconcilable with democratic principles that the HR is making enforceable decisions without being obliged to justify their validity. Nevertheless, some steps can be taken to limit the damage, and these steps were suggested by the International Crisis Group (ICG), who suggested that the PIC should revisit its Bonn conclusions instructing the HR to use them only in an emergency situation that threatens the peace. By doing this, the ICG suggested that the credibility of a PIC commitment to the OHR security role will be improved The High Representative s Power to Enact Legislation Due to a fragmented legislative process in BiH, there are many opportunities to obstruct the adoption of some legislation, meaning that politicians in BiH tend not to be able or willing to agree on most matters. Therefore, the HR s power to enact legislation is something that makes it possible for some urgent legal texts to be adopted. In particular, some of his decisions were decisive for establishing freedom of movement throughout BiH, meaning that some of his decisions were made in the best interest of the country. In spite of such actions, the problem remains that according to the democratic principle of popular sovereignty, it is necessary that legislation is adopted by a body that is elected by people. As Article 3 of the Protocol to the ECHR requires, The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature. 40 Therefore BiH, as a member state of the Council of Europe, is obligated to 38 Council of Europe, Parliamentary Assembly, Strengthening of democratic institutions in Bosnia and Herzegovina resolution 1384 (2004),< accessed on 17 February International Crisis Group, Policy Briefing, Bosnia: Europe s Time to Act, Europe Briefing N 59, Sarajevo/Istanbul/Brussels, 11 January 2011 < > accessed 27 February European Court of Human Rights, European Convention on Human Rights, < B4575C D7A/0/Convention_ENG.pdf> accessed on 20 February

24 respect the rules of the Organization, while on the other hand the HR is only accountable to the PIC for his acts, thought not to the people of BiH. The Venice Commission also has emphasized that from a legal point of view, the Constitutional Court of BiH is the sole institution that reviews whether or not some legislation made by the Parliamentary Assembly of BiH is constitutionally accepted, yet the Constitutional Court cannot examine whether legislation introduced by the HR were justifiable. This issue in particular was evaluated the most by the Venice Commission, where the focus was on such concerns as the removals from office of civil servants or elected politicians by the HR, removal legitimized by non-cooperation with the ICTY, removals for corruption, or the obstruction of the implementation of the Dayton Agreement. For example, the Venice Commission emphasized that the termination of employment of a public official interferences with the rights of the person concerned, since in order to meet democratic standards, the person has to be allowed a fair hearing and a possibility of hearing. On the other hand, the Commission has also stressed the idea that removals by the HR pursue a legitimate aim and are based on serious grounds (e.g. non cooperation with ICTY). 41 Nevertheless, a two-fold problem exists: first, the HR is not an independent judge, and hence there is no possibility of appeal; more importantly, the HR does not have the democratic legitimacy that derives from the people of BiH. Nevertheless, the Venice Commission explains this in rather logical way, stating that it would be unrealistic to insist on immediate full compliance with all international standards governing a full-fledged democracy in a post-conflict situation such as the one that existed in BiH following the Dayton Agreement. Therefore all of the decisions that were made by the HR were actions that were in the interest of the state. At the same time, it would be unrealistic to expect that the judicial system of BiH after the war was capable of dealing with certain issues. However, the most important fact that was stated was that, This situation can however not last forever but, also taking into account the important reforms of the judiciary carried out at the request of or imposed by the High Representative, the day must come when such decisions are made subject to full judicial control and made the responsibility of the proper national institutions Ibid Ibid.37 24