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Home Armed Conflict The High Representative for Bosnia and Herzegovina: A Requiem for Legality

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.

The case of the High Representative for Bosnia and Herzegovina and his Powers

The institution of a High Representative for Bosnia and Herzegovina was established by the General Framework Agreement for Peace in Bosnia and Herzegovina in December 1995 (hereinafter: DPA).   Article I (2) of Annex 10 of the DPA, titled: ‘Agreement on Civilian Implementation’ provides that ‘the Parties request the designation of a High Representative… to facilitate the Parties’ own efforts and to… coordinate the activities of the organizations and agencies involved in the civilian aspects of the peace settlement.’  The Agreement has therefore determined the mandate of the institution of the High representative, but it stems from the parties’ own will and efforts to achieve the peace.  Article II of the Agreement,  titled: ‘Mandate and Methods of Coordination and Liaison’  limits the High Representative’s powers to activities as follows: ‘monitor’, ‘maintain’, ‘coordinate’, ‘facilitate’, ‘participate’, ‘provide guidance’, ‘attend or be represented at meetings’.

As far as interpretation of this part of the DPA is concerned, according to Article V ‘the High Representative is the final authority in theatre regarding interpretation of this Agreement on the civilian implementation of the peace settlement’ (emphasis added).  This provision clearly limits the power of interpretation designated to the High Representative to the interpretation of this particular Annex, not to the whole DPA.

But in spite of this clear legal limitation there has been a significant assumption and extension of powers and authority undertaken by the consecutive High Representatives. This strategy has resulted in explicitly acknowledged violation of the Rule of Law (see the speech of the High Representative on 18 April 2006), undermining the very essence of the DPA, and violation of human rights.

In order to circumvent the letter, spirit and the limitations on his activities imposed by the DPA the High Representative unilaterally expanded his powers by the so-called Bonn Powers.  But to explain the unique nature of the extension of his powers at the Conference it is necessary to introduce the Peace Implementation Council to the reader first.  A group of states decided to form a council and to get involved in the implementation of the civilian aspect of the DPA. The Council, a body described by Chandler as ‘self-selected members’, ‘a legal figment, designed to cohere the international management of the Dayton process, but without the restrictive ties of international law’[2], would ‘review the progress’ of the DPA.  The Council also provided ‘political guidance’ to the High Representative, which can be seen as a rather controversial involvement.  Even if we assumed that, legally speaking the Council was entitled and legitimized (by the participation of a significant number of states) to provide the High Representative with new, significantly extended powers, it did not actually do that under this often stated legal justification for the new powers. The Council simply welcomed the intention of the High Representative to use his final authority in theatre…; it did not list or determine any specific powers in fact or boundaries of the High Representative’s conduct, and this is the most troubling aspect of the so-called Bonn Powers from a legal point of view.

The Venice Commission in 2005 expressed its Opinion in which it acknowledged the fact that ‘the use of the Bonn Powers by the High Representative was beneficial for Bosnia and Herzegovina and its citizens and a necessity following a bloody war’, but it also called for a ‘progressive phasing out of these powers and for the establishment of an advisory panel of independent lawyers for the decisions directly affecting the rights of individuals pending the end of the practice’. [3] Clearly, the High Representative has arisen above the parties to the DPA, with a rather peculiar outcome that the parties are not in control over their own peace treaty. [4] It is also worth noting in this respect that the UN Security Council has on numerous occasions expressed its view that the primary responsibility for the implementation of the DPA lies with the authorities of Bosnia and Herzegovina, not with an expatriate.[5]

The European Stability Initiative in its Open Letter of July 2003 pleaded with High Representative to phase out the so-called Bonn Powers because they were hurting the country’s European future. Expressing their view the authors argued:

‘We believe that the Bonn powers are incompatible with international efforts to build democracy and the rule of law… The protectorate role of the High Representative reinforces the worst tendencies of the old Yugoslav political culture: the fondness for the…“strong hand” that acts as a deus ex machina outside the political process. This highly personalised style of politics, where ultimate power rests in the hands of one charismatic individual, is exactly what democratisation efforts are supposed to overcome.’

Legally speaking, the assumption of the powers by the High Representative is ultra vires; there is neither legal basis nor justification for any powers outside those envisaged in the DPA, which is to monitor and help with the implementation of the civilian aspect of the treaty.

Legality of the High Representative’s Actions in Bosnia and Herzegovina

It is practicable to divide the examination of legality of the High Representative’s actions in Bosnia and Herzegovina into two closely related areas: violations of International Law and violations of the parties’ democratic entitlements. But let us start with a couple of episodes of High Representative’s authoritativeness that go well beyond the margins of legality; those that beg belief, the kind of which a Roman Emperor would have found difficulties in justifying its exercise. The first one was to ban a Nobel winner’s book from the new Bosnian’s curricula in early 1999! The decision was taken under a project of modifying or removing ‘inflammatory content and hatred speech’ from textbooks used in Bosnia and Herzegovina. The author, Ivo Andric won the Nobel Prize for this work in 1961. The book, only once depicts the traditional style Turkish Ottoman Empire’s execution in 16th century and this was sufficient for the High Representative to declare it ‘inflammatory, hateful and offensive’ towards Muslims of Bosnia and to ban it altogether.  To expose the absurdity – banning a Spanish book from the depicting the times of the Islamic rule in the country in the medieval times for allegedly offending the current Muslim population of Spain would be an appropriate equivalent.

The second episode concerns the Arbitration Award on the Implementation of the Municipal Election Results in Drvar of 14th September, 1999.  Essentially, the Mayor of Drvar Municipality was removed from office because he was threatened by extreme Croat nationalists for implementing the DPA as required! The High Representative decided:

Since April 1998, due to his courageous efforts to ensure the return of refugees and displaced persons to Drvar, the Mayor has faced legitimate security concerns that have prevented him from taking on the responsibilities of the position he was elected to… Therefore, by this Arbitration Award, we regretfully replace Mr. Mile Marceta as Municipal Mayor and appoint Mr. Momcilo Bajic from the Coalition for Drvar as Municipal Mayor…This decision shall enter into force as of the date of this Arbitration Award and does not require further ratification by the Municipal Assembly or any other municipal organ. These provisions are final and binding.

The two episodes are chosen to suggest that the functioning of the High Representative and his Office, not only ignore democratic will of the Bosnian peoples, but effectively prevent the democratisation of the country.

One of the first processes initiated by the High Representative was a vetting procedure for police task force, which resulted in hundreds of people losing their jobs without having any legal remedy and route to put their side of the story. The European Stability Initiative Report of 2007 finds that between 1996 and 2002, 793 Bosnian police officers were declared unfit to exercise police powers. Those individuals were banned from serving as police for life. Yet there was no the most basic procedural safeguards, which the UN Secretary-General himself has noted was the difference between legitimate vetting and ‘wholesale purges’. The Council of Europe’ s Parliamentary Assembly in particular urged the High Representative to…’stop the practice of removing officials, including judges and elected representatives, from office.’

Violations of International Law

Article 25 of the International Convention on Civil and Political Rights provides for the right to participate in public affairs, voting rights and the right of equal access to public service.  In its 25th General Comment the Human Rights Committee in 1996 stressed that the right imposes a positive duty on states to enable its exercise. As it held: ‘whatever form of constitution or government is in force, the Covenant requires States to adopt such legislative and other measures as may be necessary to ensure that citizens have an effective opportunity to enjoy the rights it protects. Article 25 lies at the core of democratic government based on the consent of the people and in conformity with the principles of the Covenant.’

Since assuming the so-called Bonn Powers in December 1997 the High Representative has made more than 800 executive decisions and imposed 300 laws overriding the state’s sovereignty and establishing institutions without any public consultations, but the financing of which will of course be paid by taxpayers. During the same period the High Representative has made a number of decisions removing legitimately appointed officials from their offices, including successive prime ministers and presidents of one of the parties to the DPA, judges, mayors and other democratically appointed representatives.  Routinely, the removed officials were banned from carrying out or participating in any other public duty or commitments. What is most striking about these decisions is that they were coming without any warning, any substantive explanation or convincing reasons and characterised by the lack of due process throughout and finally without the right to appeal against them.  By this practice the High Representative has made the most sustained attack on the Rule of Law in the modern history so to speak.

Vagueness, arbitrariness and lack of due process are detectable in all the decisions the High Representative has made. A couple of citations are instrumental in describing the practice.  In one of his decisions in 2004, simply titled Decision no. 250/04, the High Representative removed the General Director of RS Telekom from his position and from other public and party positions he currently held and barred him from ‘holding any official, elective or appointive public office and from running in elections and from office within political parties unless or until such time as the High Representative may expressly authorise him so to do or to hold the same’. The reasons for the removal were stated as follows:

Bosnia and Herzegovina has singularly failed to…apprehend and deliver to just prosecution a number of persons indicted under Article 19 of the Statute of the ICTY. Said failure could not have occurred without…the general culture of both overt and secret complicity and of silence prevalent in the one Entity of Bosnia and Herzegovina where such individuals are believed to have found sanctuary…It now falls on the international community to redress this intolerable situation…Based on the foregoing and upon solid information and belief, it is deemed necessary to remove from public office [the individual]. He holds the position of General Director of RS Telekom; he is… an integral part of the common scheme within [the entity] to foster a culture of silence and deceit wherein war crime indictees are protected from justice (emphasis provided).

Helping a country to implement peace, achieve reconciliation and to develop and maintain democracy by punishing and individual for participating in a ‘culture of silence’ begs belief and would indeed leave a staunch utilitarian bewildered.

The European Commission for Democracy through Law (the Venice Commission) expressed its view on the practice of removing individuals from office by the High Representative in 2005. As it held:

The termination of the employment of a public official is a serious interference with the rights of the person concerned. In order to meet democratic standards, it should follow a fair hearing, be based on serious grounds with sufficient proof and the possibility of a legal appeal…the High Representative does not act as an independent court and that there is no possibility of appeal. The High Representative…has no democratic legitimacy deriving from the people…As a matter of principle, it seems unacceptable that decisions directly affecting the rights of individuals taken by a political body are not subject to a fair hearing or at least the minimum of due process and scrutiny by an independent court.[6]

Equally eloquent and explicit in criticising the strategy was the Parliamentary Assembly of the Council of Europe in 2004 when it stated:

[The Assembly] recalls that a key objective of Bosnia and Herzegovina’s membership of the Council of Europe was to promote domestic ownership and responsibility for reform…The Assembly urges the High Representative to… stop the practice of removing officials, including judges and elected representatives, from office.

In 2007 the European Stability Initiative compiled a report on human rights violations in Bosnia and Herzegovina by the High Representative and his Office.  It revealed communication between the then High Representative and UN Under-Secretary General for the Peacekeeping Operations in which the High Representative demanded that the UN Security Council intervene and prevent any examination of his decisions by the domestic courts. On 13 May 2003 the High Representative pleaded with the UN to enable him to ignore the courts of the country, who initially declared some of the removals unlawful:

The Courts are ignoring or misinterpreting the legal force of the UN decisions…I would also very much welcome it if actions could be taken […] to intervene officially as an interested/indispensable party and, if possible, to set aside the verdicts or to stay their enforcement and the progress of the pending and impending cases.

By the decisions above the High Representative blatantly violated Articles 6 and 13 of the European Convention on Human Rights, which provide for fair trial and effective legal remedy.

The High Representative has also exhibited great deal of resilience faced with a prospect of being held responsible for violations of either international or domestic laws. In Beric and Others v Bosnia and Herzegovina, the High Representative submitted that his actions could not be attributed to or to engage responsibility of any state, while in Anthony Sarkis v Miroslav Lajcak and the Office of the High Representative, the High Representative argued quite opposite: that he was an organ of states and that his actions are attributable to those states, not to him personally. The only consistent feature of the argument in both cases was to avoid responsibility for the actions alleged to have violated the applicants’ rights. In the former the rationale was that Bosnia and Herzegovina had accepted responsibility for the actions of the High Representative since the powers of the institution went beyond those envisaged by the UN Security Council, while in the latter responsibility was sought on the basis of the High Representative’s own personal capacity.

Violations of the Parties’ democratic entitlements

In a different political context from the one the present crisis is being unravelled the entitlement to be represented by democratically elected representatives was declared a right.[7] This so-called new right under international law was never deemed applicable in the present conflict; the peoples of Bosnia and Herzegovina were routinely described by the High Representative as being incapable of taking care of their own affairs.  He removed hundred of officials from office without any right of appeal, including one of the presidents of Republika Srpska Mr. Nikola Poplasen in 1999.

In order to justify the continued existence and exercise of his extraordinary powers the High Representative repeatedly and routinely describes the situation in the country as essentially hopeless, which requires constant external involvement. In one of the most recent reports to the UN Security Council the High Representative said:

[s]ome progress had been made towards making the country ‘a peaceful, viable State, irreversibly on course for our European integration’… but the State was not yet fully viable and its role and competencies were contested by some of its political leaders.  For that reason, there had only been modest progress towards Euro-Atlantic integration, which left the country more vulnerable to the financial crisis as the federation’s finances were especially dire.  In those circumstances, reforms were urgently needed’.

By this strategy the High Representative has effectively prevented the country to take part in the European and wider international integrative processes. And in this lies the main absurdity of the whole affair: Bosnia and Herzegovina is supposedly a sovereign country with the main institutions constituted properly and democratically elected representatives but an individual is empowered to rule on the country’s ‘progress’ in relation to aims, conditions, tasks and programmes that were set by the individual himself in the first place! This capacity to promote the well-being of the inhabitants and the progressive development of their legitimate representatives is reminiscent of the powers of trustees to rule over non-self-governing territories, but this is supposedly not the case in Bosnia and Herzegovina. As Caplan concludes: ‘Trusteeship and sovereignty are mutually exclusive concepts.’[8]

In his speech of 24 July 2009 Olli Rehn EU Commissioner for Enlargement said:

The OHR cannot take this country to where you want to go next… there is no way a quasi-protectorate can join the EU. Nor will an EU membership application be considered so long as the OHR is around…to avoid any misunderstandings: a country with a High Representative cannot become a candidate country with the EU.

In June 2008 the EU signed the Stabilisation and Association Agreement with Bosnia and Herzegovina after the county met all the conditions from the Feasibility Study. Even at that initial stage the Commission assessing the overall situation in the country opined that Bosnia and Herzegovina is a democratic state operating under the rule of law with free and democratic elections; that democratic systems and the rule of law had begun to function; that there is freedom of expression and peaceful assembly; that the country is a highly de-centralised state designed to accommodate the disparate preferences of estranged peoples and also that the country’s constitution provides a system of checks and balances, which balance legislative and executive power and guarantee the rights of each ethnic group. In October 2005 the European Commission expressed its view that Bosnia and Herzegovina had made a significant progress in all the areas identified by the Study.

This lack of democracy and a kind of discrepancy between the recognised need to build the local capacity and the full reliance on international actors in the current administration of the country was also discerned by Caplan in 2004.[9]

But confusingly the Peace Implementation Council does not seem to be concerned with the lack of any progress in terms of substantive democracy in the country during the last 15 years. Talking about the character of the international involvement in the country through the PIC Chandler points out:

The only transition which has taken place has been from the ad hoc policy-ownership of self-selected members of the Peace Implementation Council (PIC) to direct regulatory control under the aegis of the European Union (EU). This transition has been brought about through informal and unaccountable mechanisms of external regulation, and has been imposed “from above” without any debate or genuine involvement of the people or elected representatives of BiH.[10]

It is feasible to conclude that the High Representative has denied the right of the peoples of Bosnia and Herzegovina to participate in the international integrative processes by this strategy. The usual and routine ‘the country is not yet fully viable’ opinion by the High Representative effectively prevents democracy to be establish in the country; the main political parties’ programme is based on making efforts to join the European Union and other international organisations and institutions; the elected representatives cannot fulfil their mandate because it is not them who make decisions on this important aspect but the High Representative. This kind of scenario in which democratically elected representative cannot fulfil their main duties is totally unacceptable and unworkable as other international disputes had demonstrated.

Conclusion

As explained above the DPA has established the institution of the High Representative and its mandate, which stems from the parties’ own request, will and efforts to achieve the peace.  What the High Representative achieved was actually quite remarkable; from the initial ‘parties request the designation’ the subsequent High Representatives have  taken complete control of the whole DPA, its annexes and their interpretation and have completely transformed their mandate into nation-building activities, which resulted in Bosnia and Herzegovina becoming an undeclared international protectorate.  By this illegitimate assumption of powers and activities and by pursuing undemocratic methods and strategies, the institution of the High Representative has created, what could be described as a situation of perpetual transience, which requires the parties to the DPA to constantly improve and to pursue aims, which are subsequently being transformed by the High Representative into necessary preconditions (usually unachievable or requiring longer processes to be applied) but which provide justifications for the High Representative to claim that the parties are not capable of fulfilling those conditions, the failure of which justifies his and his Office’s continued existence.  And then a new set of conditions are being created and this vicious circle has no end in prospect.  There is no transparent standard according to which the High Representative creates those new aims, tasks and conditions; the goal posts can be moved indefinitely.

By this strategy the High Representative and his Office have undermined the DPA itself, which is the very foundation of Bosnia and Herzegovina and the main condition of the country’s continued existence. A rather bizarre but indicative attitude towards the DPA by the High Representative was demonstrated by the High Representative who served in the region between 2002 and 2006. In a recent interview he said that his main task was to create the country’s effective institutions, which required a gradual disintegration of the DPA’s structures.[11] The strategy inevitably led to deepening of divisions among the former warring factions.  The DPA, as any other peace agreement, is a political compromise between two antipodal positions adhered to by the parties to this conflict from the very beginning: a unitary or federal state. The DPA reflected the reality on the ground and created a decentralised state consisting of two entities and three ethnic groups – the Federation of Bosnia and Herzegovina, consisting of the Bosnian Muslims and the Bosnian Croats and the Republika Srpska, the Bosnian Serb entity. Imposing decisions which may champion either side’s original position would certainly be challenged by the opposite side, and this can go on and on indefinitely. In other words, the functioning and especially the style adopted by the High Representative and his Office prevented consensus among the former warring factions, the prudence of which even the most hardened realist would certainly question.

As a result of the continued assumption and expansion of powers by the High Representative Bosnia and Herzegovina has been transformed into an international protectorate, which was not envisaged by the DPA and which effectively prevented the country from joining the European Union.

The aspect that was never discussed sufficiently in academic circles in relation to the DPA[12] is the fact that it has created two distinct international missions in Bosnia and Herzegovina with clearly defined roles and aspects of its implementation.  As far as the military aspect of the DPA is concerned it must be said that it has significantly reduced its presence and activities. From the initial 60.000 troops provided by NATO on the basis of the UNSC Resolution [13] it now consists of 2.000 EUFOR soldiers.  This reduction clearly demonstrates that the peace in Bosnia and Herzegovina has long been established. Hostilities among the former warring factions ended 15 years ago and the region as a whole rather stable. Had the situation been different in the sense that armed confrontation and hostilities were still taking place, it would have been impossible for the High Representative to meticulously generate new aims and conditions; the priority would have been to secure the end of hostilities.  This unthreatened peace and a safe environment have paradoxically contributed to the powers and authority of the High Representative and his Office.

Accountability and responsibility of the international actors as demonstrated were not established at all in the processes of implementing the peace in the region.  Caplan concludes that the international administration in Bosnia and Herzegovina is not a representative democracy and calls for a greater accountability to be established to the local population. [14] In a similar manner Wilde argues that the apparent incompatibility of international administration and accountability, as conceived by international law in the process of implementing the peace in Bosnia and Herzegovina may have negative impact on the country. [15]

D. Kennedy is right in suggesting that international law may have a dark side; that it can be used (by the ‘ill-intentioned internationalist’) to pursue pernicious aims[16] and that the law should be examined from this, extra-vernacular  project perspective, which the present analysis tried to achieve to a certain degree. But there seems to be an important difference: the present affair may more appropriately be described as ‘a dark episode’ rather than the law itself creating the problems as explained in this article. There is little choice but to remind the reader of the fundamental principles of international law and their applicability in examining the legality of the High Representative’s actions in the country with the inevitable conclusion that it seems to be a requiem for legality rather than any new and viable development.

Insisting on application and compliance with the most basic principles and rules of international law is a far cry from the Kelsen’s tautology and a normative science approach to the discipline[17]; international law is not a perfect normative and consistent system but this characteristic should not be relied on as a justification for violation of the most fundamental norms of international law.

As Tolkien’s hobbits tried to deny Sauron’s unlimited powers in the oppressive realities of their world, this article has also attempted to challenge the powers constantly expanded and illegitimately assumed by the consecutive High Representatives in Bosnia and Herzegovina; to expose the absurdity of an attempt to establish democracy by notoriously undemocratic means and violations of the most basic rights of the parties to the present conflict.


[1] Gerald Knaus & Felix Martin, ‘Travails of the European Raj’, Journal of Democracy, Vol. 14, No. 3, 2003, p. 62.

[2] David Chandler, ‘From Dayton to Europe’ Vol. 12 International Peacekeeping, No. 3, 2005, p. 337, at 338.

[3]The European Commission for Democracy through Law (the Venice Commission). CDL-AD (2005) 004.

[4] Note that the parties to the DPA are: The Republic of Bosnia and Herzegovina, its two entities: the Federation of Bosnia and Herzegovina, and the Republika Srpska; the Republic of Croatia and the Federal Republic of Yugoslavia.

[5] See UNSC Res 1845, 2008; UNSC Res 1785, 2007; UNSC Res 1722, 2006; UNSC Res 1639, 2005; UNSC Res 1575, 2004; UNSC Res 1491, 2003; UNSC Res 1423, 2002; UNSC Res 1357, 2001; UNSC Res 1305, 2000; UNSC Res 1247, 1999; UNSC Res 1174, 1998; UNSC Res 1088, 1996.

[6] The Opinion on the constitutional situation in Bosnia and Herzegovina and the powers of the High Representative, CDL-AD (2005) 004, paras. 94-96.

[7] See Thomas Franck, ‘The Emerging Right to Democratic Governance’ 86 AJIL, 1992, p. 46. The author claimed that a new right under international law had emerged – the right to be governed by democratically elected representative after the president of Haiti was deposed in a military coup.

[8] Richard Caplan, ‘Who Guards the Guardians’ Vol. 12 International Peacekeeping, No. 3, 2005, p. 465.

[9] Richard Caplan, ‘Partner or patron? International civil administration and local capacity-building’, Vol. 11 International Peacekeeping, No.2, 2004, p. 229.

[10] Chandler, ‘From Dayton to Europe’ supra 2, p. 337.

[11] See Dnevni Avaz, 16/5/2009; interview with Paddy Ashdown.

[12] See however Paola Gaeta, ‘The Dayton Agreements and International Law, 7 European Journal of International Law, 1996, p. 147.

[13] UNSC Resolution 1031 of 15 December 1995.

[14] Caplan, ‘Who Guards the Guardians?’ supra 8, p. 463.

[15] Ralph Wilde, ‘Accountability and International Actors in Bosnia and Herzegovina, Kosovo and East Timor’ 7 ILSA Journal of International and Comparative Law, 2000-2001, p. 455.

[16] David Kennedy, ‘When Renewal Repeats: Thinking Against the Box’ 32 New York University Journal of International Law and Politics, 2000, p. 335.

[17] Hans Kelsen, ‘The Pure Theory of Law’, 50 LQR, 1934, pp. 474-, 477-85 and 51 New York University Law Quarterly Review, 1935, pp. 517-22.

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5 Responses

  1. A decent overview, but describes a situation of at least several years ago. Deficiency of legitimacy has taken its toll, and HR now very rarely if ever uses his “Bonn powers”. Constitutional Court, on the other hand, has become almost completely oblivious to it – striking another one of the laws “enacted” by HR just several weeks ago, as unconstitutional.

    A more interesting question is whether in his position, and with his (raj) powers, HR has any positive obligation to use them to rectify human rights abuses or general inefficiency of state system.

  2. Miroslav Baros Miroslav Baros

    In every single decision the Hight Representative states the Bonn Powers as the source of authority; see for example one of the most recent ones: “Decision Nullifying and Voiding the Decision of the Assembly of the Western-Herzegovina Canton on Approval of the Government of the Western-Herzegovina Canton” adopted at its Session held on 27 August 2010; the extraordinary authority was established by the Bonn Powers and of course that he is still using them. Also the idea was not necessarily to offer the most recent developments but to identify and emphasize the most striking features of the institution.
    Thanks

  3. Drazen Pehar

    Dr Baros, this is an excellent analysis, very pertinent and accurate.
    There are recent examples of the use of Bonn powers (this time, on the side of an anti-constitutional assumption of the Federation Parliament seats and the Presidency by a number of parties calling themselves ‘Platformists’). The High Rep Inzko ‘temporarily suspended’ a BiH Election Commission’s decision to call the implementation of the election results into question. He said that was for the purpose of ‘creating a clear situation in a legal sense.’ We know that this was actually a US ad hoc decision. The High Rep is just a puppet. I wrote an article ‘Bosnia and Herzegovina as an Embassy of the High Representative’ (remains untranslated into English). The only objection I have is as follows: you call Bosnia ‘international protectorate’. I call it ‘tyranny-dictatorship’ because, as a matter of consitutional make-up, that is what you have when you have a body with de facto unlitimited legal powers.

  4. Miroslav Baros Miroslav Baros

    Yes you are absolutely right in your description of the phenomenon; also note that the Office recently threatened to use the Bonn Powers when Republika Srpska planned a referendum on the Federal institutions and their further cooperation with the ICTY. There are people who argue that the Representative and his office do not actually use those powers any longer!

  5. [...] for Bosnia and Herzegovina: A Requiem for Legality’, European Journal of International Law Blog, available by clicking here. For an insider’s account of Transatlantic disagreements concerning the proper implementation of [...]