International power and its limits
ESI has contributed to the debate on international power in Bosnia for more than a decade. In a November 2001 discussion paper, "In search of politics", we wrote:
"In the next phase of the international mission in Bosnia, the skill to act as the mediator of domestic political processes and the knowledge to identify local allies will replace the High Representative's powers as the most important weapons in the international armoury. The goal is to develop methods of international assistance which strengthen and support the Bosnian political process, instead of overruling it."
The approach of the international community went in the other direction, particularly during Paddy Ashdown's tenure as High Representative for Bosnia and Herzegovina. Ashdown used the "Bonn powers", which allowed him to sack elected officials and impose legislation, like no other High Representative. The stated aim was to strengthen central state institutions. Any Bosnian officials who dared to resist Ashdown's policies were quickly labelled opponents of the Dayton Peace Agreement. Many – including some who had earned office through democratic elections – were sacked.
In a 2003 article ESI's Gerald Knaus and Felix Martin questioned the legitimacy of such actions:
"When the High Representative today speaks of an 'emergency,' he refers not to hate-filled radio broadcasts inciting violence against peacekeeping troops but rather to inefficient tax collection, the excessive regulation of private business, corruption in the public utilities, or technical drawbacks that make the court system less efficient than it otherwise might be. When he speaks of enemies of the Bosnian state, he means not armed paramilitaries committing premeditated arson but businesspeople evading sales taxes or politicians implicated in procurement scandals."
ESI also explored the consequences of unaccountable international rule in a series of case studies. One of these, "On Mount Olympus", documented the UN police mission's hurried and non-transparent vetting of Bosnian policemen and exposed how the UN and the OHR failed to address the process' considerable shortcomings that had breached the UN's own standards.
In 2006, Bosnia's constitutional court ruled that the lack of an appeal process for individuals sacked by the High Representative constituted a violation of the European Convention on Human Rights. In "Legal dynamite" ESI explained the ruling and its implications. The report pointed out:
"The judgment arises from the dismissal of Dragan Kalinic as president of the Serb Democratic Party (SDS) and speaker of the Republika Srpska parliament in June 2004, alongside the dismissal of 34 other SDS officials. In its brief explanation of the dismissals, the Office of the High Representative cited a report of an international Special Auditor describing the SDS's party finances as 'a catalogue of abuse, corruption and tax evasion.' It concluded that the High Representative 'cannot be confident' that the SDS was not continuing to provide financial support to its former leader, indicted war criminal Radovan Karadzic.
The High Representative did not directly accuse Kalinic of any illegal act. He and the other sacked SDS officials were held collectively responsible for conduct for which they may or may not have been individually responsible. No evidence was presented to any independent authority. There was no right to appeal. From a human rights perspective – which the Constitutional Court was asked to evaluate – this decision disregarded the most basic principles of justice. It is, however, no different from the hundreds of others.
The Constitutional Court has ordered the Bosnian state to ensure the protection of its citizens' constitutional rights within three months."
The High Representative reacted by ordering Bosnia's institutions not to implement the ruling.
ESI also examined how the international community invented special "EU standards" for Bosnia. To be allowed to sign a Stabilisation and Association Agreement (SAA) with the EU, Bosnia was asked to implement OHR-prescribed reforms in the area of police enforcement. The paper "The Worst in Class" showed that the standards expected of Bosnia were not demanded from any other accession country, were absent in the EU itself, and that the country's police force functioned pretty well by regional standards. Less than a month after the paper was published, the EU backtracked on its demands and the SAA was initialled on 4 December 2007. But the damage had already been done. The EU's soft power in Bosnia, which relies on the bloc's credibility, transparency and fairness, was considerably weakened.
Against the background of an improving security situation, the systematic violation of democratic procedures by the OHR led to increasing calls for its closure, a position ESI has advocated since 2003. In 2005 the steering board of the Peace Implementation Council (PIC), the body composed of 55 states and international organisations overseeing the implementation of the Dayton Peace Agreement, for the first time explicitly mentioned the closure of OHR. In its communiqué from 24 June 2005 it stated:
"The Steering Board expressed its intention to continue the process of transferring responsibilities to the BiH authorities. The culmination of this process will bring to an end the OHR. The Steering Board expressed its readiness to do this, and to recommend that the position of the High Representative be replaced by an EU Special Representative. This step must be endorsed by a UN Security Council resolution."
The following communiqué from 7 October 2005 offered some concrete ideas on the conditions for OHR's closure, stating that
"this process of transition is tied to actual progress in BiH and that one clear indication to the Steering Board that BiH is indeed firmly on the road to Europe will be when it has qualified for negotiations on a Stabilisation and Association Agreement with the EU, and taken the hard decisions still needed to accomplish that."
When High Representative Paddy Ashdown delivered his last report to the UN Security Council on 15 November 2005, on the eve of the EU's decision to start SAA negotiations, he spoke about a "remarkable achievement":
"BiH has done what many said was impossible even a year ago, let alone at the start of my mandate in May 2002. For the country now stands at the gates of Europe."
For Ashdown, however, this only meant that the time was ripe for "phasing out the use of the Bonn Powers and replacing the OHR with an EUSR-led structure." There was no mention of bringing the process to a close.
Under Ashdown's sucessor, Christian Schwarz-Schilling, things moved more swiftly. In March 2006, two months after he took office, the PIC Steering Board said that "the time for transition from the OHR to an EUSR office is approaching." The board did not provide a concrete time horizon but underlined "that its decision on the actual transition will be made upon a recommendation of the High Representative and based on the situation then prevailing in BiH and the region." In June 2006, the Steering Board finally announced its plan to close the OHR by 30 June 2007.
By February 2007, however, without giving explicit reasons, the steering board postponed the time frame for shutting down the OHR to June 2008. Opponents of closure, led by the US and the UK, had gained the upper hand by arguing that reforms had stalled. The time for giving up the tools of direct intervention, they insisted, had not yet arrived.
A year later, on 27 February 2008, the PIC Steering Board eventually introduced five objectives and two conditions that needed to be met before the OHR could be closed.
The objectives were:
- Acceptable and Sustainable Resolution of the Issue of Apportionment of Property between State and other levels of government
- Acceptable and Sustainable Resolution of Defence Property
- Completion of the Brcko Final Award
- Fiscal Sustainability (promoted through an Agreement on a Permanent ITA Co-efficient methodology and establishment of a National Fiscal Council)
- 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).
The two conditions that needed to be fulfilled prior to transition were: the signing of the SAA; and a positive assessment of the situation, "based on full compliance with the Dayton Peace Agreement", by the Steering Board.
More than six years after the PIC Steering Board first mentioned the closure of the OHR, the OHR and its Bonn Powers remain intact. The OHR's closure still formally depends on the five objectives and two conditions (5+2). From the beginning, the choice of conditions smacked of arbitrariness and deliberate ambiguity. (What exactly constitutes "full compliance" with the Dayton Peace Agreement?) It does not help that the latest Steering Board communiqués do not even state which conditions have been fulfilled and what still needs to be done for the OHR to leave town.
20 August 2012
Discussion paper: Legal dynamite. How a Bosnian court may bring closer the end of the Bosnian protectorate (2007)
Picture Story: On Mount Olympus (2007)
Report: Post-Industrial Society and the Authoritarian Temptation (2004)
Article in Journal of Democracy: Travails of the European Raj (2003)
Discussion paper: In Search of Politics: The Evolving International Role in Bosnia and Herzegovina (2001)