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The High Representative for Bosnia and Herzegovina: A Requiem for Legality

Published on December 14, 2010        Author: 

Dr Miroslav Baros is Senior Lecturer in Law at Sheffield Hallam University, UK.

 Introduction

 ‘The Order further confirms that any proceeding instituted before any Court… which challenges [my] decisions sanctioning individuals …enacted by  me,  will be inadmissible, unless… I expressly give my prior consent.

The Decision of the Court does not affect [my] decisions… and individuals who have been banned from public life by such decisions.

Moreover, any step taken by any institution or authority… to establish any domestic mechanism to review… my decisions will be considered an attempt to undermine… me.

This Order comes into immediate effect’…

The reader has three attempts within 30 minutes to identify the author of this statement.  To help eliminate the most likely candidates I will clarify that it is neither an assertion of authority and unlimited powers by Tolkien’s malevolent and Dark Lord Sauron, nor is it Judge Dredd’s famous statement through Sylvester Stallone: ‘I am the Law’. Sorry, the time is up; it is Bosnia’s High Representative of the International Community and his Order Concerning Implementation of Constitutional Court Decision AP-953/05 of 23/03/07.

In the view of the author of the present article recourse to the world of fantasy and entertainment (for which the author most sincerely apologises if it caused annoyance) was necessary because it was, as the offered assistance to the reader suggests, an arduous task to find an appropriate comparison in the real world of international relations. It was actually relatively recently suggested that the style and powers of the High Representative resemble those of Lord William Bentinck who became governor-general of India in 1828,[1] but with the advantage of hindsight it can safely be argued that the High Representative has, by far beaten Lord Bentinck and therefore a comparison with the world of fantasy may be the closest one. Knaus and Martin, bewildered by the extent of powers and a tendency to abuse them by the High Representative drew a further comparison with the office of the dictator in the ancient Roman republic during emergencies situations, but the authors correctly concluded that even in those situations the dictator was a constitutional officer appointed temporarily by the Senate and who would be declared an outlaw if he refused to stand down after the period for which he had been appointed.

In spite of those rather dramatic comparisons and colourful descriptions a promenade of successive High Representatives continued to the present day. Cleverly wound up by a journalist in 2002 the then High Representatives excitingly admitted: ‘What we have [in Bosnia] is near-imperialism’. The High Representative also said that his job incorporated ‘Gilbert and Sullivan title and powers that should make a liberal blush’ – though as the journalist wryly noted, ‘he wasn’t blushing’.  Confusingly, on 27 February 2007 the Peace Implementation Council decided to end the High Representative’s mandate on 30 June 2008 (see here), but this was never implemented.

Writing in the Guardian in 2007 David Chandler noticed: ‘twelve years after the Bosnian conflict was apparently resolved with the Dayton agreement, the international high representative still runs Bosnia as if it was a feudal fiefdom. He has the power to impose legislation and dismiss elected politicians without any right of appeal.’

For the sake of a systematic and orderly presentation of the phenomenon the functioning of the High Representative in Bosnia and Herzegovina can be described as and categorised into two major groups of violations: violations of international law and violations of the parties’ democratic entitlements. In normal circumstances each one of the mentioned categories would in itself suffice for taking an urgent remedial action of some kind to prevent further abuse but not so in the present case. Read the rest of this entry…

Filed under: Armed Conflict, EJIL Analysis