European Court of Human Rights
European Court of Human Rights issues ruling on discriminatory character of Bosnia & Herzegovina Constitution drafted as part of US & EU led Dayton talks. Will BiH adopt new constitution and on which basis and by what process?
An awkward moment, to say the least, for those who had employed the Dayton Accords as an accessory to the rewriting of history and inflated political ambition once the European Court of Human Rights, (ECHR) declared Bosnia & Herzegovina’s, (BiH), Constitution crafted in Dayton under their supervision as violating Europe’s most fundamental principles. You might think that as one of the signatories of the Dayton Accords in 1995, I would be defending the virtues of these Accords. To the contrary, from the outset, I was vocal that Dayton was morally, legally and functionally flawed but perhaps under the circumstances it was the lesser of two evils. It was pressed upon the Government of BiH by those that had orchestrated the ethnic cleansing and the US and European mediators. With the extended threat of genocide still then pointed at the head of BiH’s citizens who I was obliged to represent and defend, it was more important to bring the killing and war to an end. Further, we understood the Dayton Accords as a transitional document that ultimately would have to implode if not dramatically refined to reflect BiH’s place as a member of the Euro-Atlantic family as well as its own history of pluralism. The critical decision of the ECHR perhaps finally will release BiH from an unnatural grip of the Accords, and it feels like a vindication for me who withdrew his signature years earlier, (I also resigned in Dayton as Foreign Minister to signal my disillusionment with the process and substance). More importantly, it is an opportunity for all to see a new start for BiH. The ECHR decision reflects a much broader flaw in the handiwork in drafting and implementing the Accords, and it will no longer be plausible for those who have their eyes wide shut to claim that they do not see the bare truth of the emperor without clothes.
It had become fashionable in some circles to take credit for the Dayton Accords. The French Government was so persistent after the signatures were delivered in its capital to insist that it be referred to as the “Paris Accords, ” (or in the least the “Dayton-Paris Accords.”) The US State Department had posted on its official web page that “Bosnia & Herzegovina had been established” by the Dayton Accords. (It only changed the storyline after we alerted that BiH’s sovereignty and territorial integrity had been recognized by the United Nations several years earlier, 1992, and such had been established by the will of its people and defended by its citizen-soldiers).
A few individuals saw association with the Dayton Accords as a vehicle for political celebrity, perhaps higher office or a Nobel. Richard Holbrooke made it into a book with made for film aspirations. Richard has resisted calls for a “new Dayton” perhaps also fearing that such would expose the flaws of the first in substance and process. After all, the Dayton Accords had become synonymous with Holbrooke’s diplomacy.
Carl Bildt had not only been part of the negotiating team in Dayton, but he found it so inviting for erecting his base for further political aspirations that he lobbied successfully to be chosen the initial High Representative based in Sarajevo responsible for implementing the Accords. His short but decisive stint was a mortal blow for any chance that dayton had of serving a constructive purpose on behalf of BiH and its people. In the last few months, Bildt has parachuted back into BiH as Foreign Minister of Sweden, presiding over the EU Presidency,(perhaps this time around hoping to trampoline himself into the role of new EU Foreign Affairs chief).
The rewriting of history almost outran the facts until the ECHR’s verdict this December. The BiH Constitution drafted in Dayton under the supervision of Holbrooke and Bildt and the undue influence of indicted war criminals as Slobodan Milosevic, was declared to be discriminatory against “minorities.” Under this Constitution, Jews and Roma are not eligible as candidates for BiH’s three member Presidency. It also though alerts to other discriminatory provisions which limit the eligibility of candidates on the basis of ethnicity in certain territories, (all non-Serbs are deemed legally ineligible for the highest post in the Republika Srpska part of BiH).
The ECHR’s decision was obliged to only address a slice of what is wrong with the Dayton Accords, if not in original design then in implementation. Following are some key provisions under the Dayton Accords that have not been effectively implemented:
— Refugees and displaced persons have returned at best to only a fraction to restore BiH’s tradition of ethnically mixed regions, cities and small towns. Part of the obstacle has been the discrimination, political and economic, openly endorsed and practiced by some in their application of the Accords. Fear is frequently a factor and sometimes it is applied to keep the “other” out. With a pre-conflict population that was almost half non-Serb, now there is less than 10% of Bosniaks and Croats in the large swathes of the ethnically cleansed Republika Srpska entity of BiH. The provisions of the Dayton Accords meticulously drafted by many of us to empower and enable return of those ethnically cleansed, nonetheless have not been effected both by failure of the international factors responsible for insuring implementation and by the obstructionism of local officials who would entrench the consequences of ethnic cleansing. The rule of law as well as justice have too frequently been overcome by the will of those intent on preserving the fruits of genocide. However, this is also a bleak sign for BiH’s future, ability to emerge reintegrated and ultimately function and to survive. Much of the country continues to drift toward homogenization whether by design, neglect or sheer inertia of the current status of Dayton implementation.
— BiH’s economy still has to undergo the thorough transformation necessary to develop its substantial potential in the new post-Communist environment. Many of the old inefficiencies continue and cronyism is prevalent. While “corruption” is frequently cited as the problem, it is rather the lack of development of the economic system away from political linkages and the ethnic hierarchies effectively enshrined within the Dayton Accords since the conflict. Undoubtedly, there has been significant improvement in the economic lives of many since the end of war; however compared to its neighbors and the expectations created by the relative well being of the former Yugoslavia, BiH has and continues to steadily fall behind. Unemployment and inadequate social welfare programs especially as they adversely affect a whole generation of war veterans imposes further risks and a sense of failure, betrayal increasingly pervades.
— Leading up to and during Dayton, accelerated BiH integration into Euro-Atlantic institutions was held out as one of the key promises and elements of the Accords. It was understood that BiH, riven by the consequences of external aggression, internal conflict, genocide and divisions deliberately implanted, would have to be addressed as a special case. President Bill Clinton personally committed to me that BiH would be promptly admitted to NATO’s Partnership for Peace and thus put on the road toward accelerated admission. (BiH has already delivered troops to the coalition efforts in Afghanistan and Iraq and peacekeepers to several UN missions thus evidencing its capacity and commitment to be a key contributor). Unfortunately, BiH now finds itself to be ever further behind its neighbors in NATO and EU integration and especially the relaxed visa regime offered to some including those still harboring indicted war criminals, as Serbia.
—Compliance with the requirements of the rule of law, of justice and of the International Criminal Tribunal for the former Yugoslavia, “ICTY,” have not yet been honored. The most egregious situation remains the failure of Serbia to deliver General Ratko Mladic, indicted for war crimes by the ICTY. Belgrade is a party of the Dayton Accords obliged to comply by all terms, including the orders of the ICTY. (Belgrade had tried to portray itself more as sponsor rather than party obliged to comply, (and unfortunately such altered characterization of Belgrade’s role has been adopted by some EU and even US politicians/bureaucrats)
There are certainly positive consequences of the Dayton Accords, most importantly, the lack of conflict. On an absolute basis, the BiH economy as measured by GDP and per-capita income has experienced positive and at times dramatic growth. World Bank assistance and remittances from the now outsized BiH Diaspora have been major contributors. BiH continues to gain higher recognition within the cultural and arts community, most notably Bosnian/Herzegovinians garnering film awards, including Oscars. BiH has been recently elected to the United Nations Security Council.
Perhaps the discussion should stop here; however it is inevitable that credit and blame for the current situation in BiH has become even more of the debate. There are those who would avoid accountability and others who have all along tried to milk BiH for their political ambitions. Regardless, coming to terms with accountability is also critical to any remedy of the situation.
Carl Bildt recently tried to solely place blame on BiH’s political leadership for the current situation. He conveniently set aside the impact of his role before, during and after Dayton, including as the first High Representative. More telling is his current drive to bring Serbia into EU accession and favored visa regime contrasted by its continued failures in several areas including the Dayton Accord obligation to deliver the indicted war criminal Ratko Mladic. More critically though, he has been a consistent detractor of BiH’s aspirations. Bildt’s action’s cannot be readily understood by any straightforward motive. I suspect that his dark history in BiH, from the betrayal of Srebrenica to schemes to ethnically divide Sarajevo, has driven a revisionist and self serving agenda. What is more difficult to comprehend why any consciences BiH political leader will still receive him in the country, except perhaps if we can explain it by some reverse “Stockholm Syndrome.”
Unfortunately though Bildt is not the only international official ostensibly responsible for helping BiH who has actually done more harm. The full lineup of suspects would overflow beyond the limits of this article. However, it is important to recount the most hypocritical. Six Bosnian residents are picked up by US military and extra-judicially renditioned to Gitmo. Worse, with a BiH judiciary and prosecutor’s offices run by Americans and Europeans presumably to instill the rule of law within the country, the contrary precedent has been established and there has been no prosecution or investigation of these illegal events, even after condemnation by the Council of Europe.
So, when foreign officials blame BiH politicians for failures from corruption to nationalist agendas, they only have to look into the mirror to see from the betrayal of the rule of law to self serving behaviour. Undoubtedly, BiH political leaders carry responsibility. However, it is most telling that in the country that has through the Dayton Accords placed more of its trust and future in the hands of “tutors” from Euro-Atlantic capitals, BiH is the farthest away from being embraced by this Euro-Atlantic family. Ironically, while Serbia is still plagued by ultra-nationalism and various ailments in the rule of law, its integration into the EU has bypassed key conditionalities. (Worse, a Bosnian Serb who served in the government and defense of Bosnia & Herzegovina has been prosecuted and jailed in Belgrade purportedly for war crimes while Ratko Mladic indicted by the ICTY remains free.)
The current failures cannot be rationalized by some innate flaw within BiH’s citizens. After all, Bosnians & Herzegovinians, including the most recent exiles have proven themselves effective contributors economically, professionally, socially, culturally and politically in the new homelands where they have been welcomed. Perhaps Bosnians & Herzegovinians can be faulted for the political leaders that they have elected, but the political rules of BiH have not organically developed consistent with BiH’s history nor progressive, open democracy but rather were orchestrated in Dayton to accommodate the demands of neighboring despots and expediency. Political accountability is not based upon economic. social or some other redeeming criteria. The Dayton Accords have established ethnic belonging, geographically and by office, as the overbearing criteria that demands loyalty and political stratification, vertical homogenization.
However, when addressing the issue of political accountability, then there remains one overwhelming void: to whom are they accountable, the “international factors,” responsible for fashioning and implementing the Dayton Accords? Perhaps to the agendas of their own national governments or even personal ambitions, but they are not held accountable to the BiH electorate, a situation exasperated by their decisive influence over most BiH media and the information reaching more objective international sources and the United Nations.
Based upon the ruling of the ECHR, the so termed “Dayton Constitution” of BiH will require substantive changes. Superficial amendments will undoubtedly be proposed by those vested in the status quo. However, the ECHR ruling has evidenced a fundamental flaw in the structure, from foundation to roof, of the Dayton Accords: vertical linkage of ethnicity, territory and political office.
The current leadership of Republika Srpska under its effective autocrat Milorad Dodik is also in a contradictory position. It is valid for them, as I do, to question the role of the “foreign bureaucrats” in directing the future of BiH. However, Mr. Dodik and company cannot then persist in their standard call that BiH must retain the foundations of the “Dayton Constitution.” The Dayton Constitution has been fundamentally discredited by the Venice Commission and other independent Euro-Atlantic institutions as well as the recent ECHR ruling. Mr. Dodik cannot choose to insulate the Dayton Constitution from fundamental change while simultaneously demanding the disassociation from the process of the same international factors that structured the Accords in the first place.
Neither Mr. Dodik nor other “rebellious” Bosnian Serbs were instrumental in structuring the Dayton Accords. (Mr. Miro Lazovic, a Bosnian Serb loyal to the BiH Government in Sarajevo, was one representative in the talks). Belgrade’s strongman Slobodan Milosevic was deemed to have absolute power to represent the “rebellious” Serbs within BiH, and it was his influence that most impacted the Dayton Accords, particularly those elements now affecting functionality as well as those directly repudiated by the ECHR. Mr. Dodik is correct that all the Bosnian/Herzegovinian parties, including representatives for its three largest, “constituent” peoples will have to engage in a new process to deliver a fresh constitution consistent with BiH’s needs and relevant European standards. However, the Dayton Constitution for countless reasons of legality, functionality and those touched upon by the ECHR ruling cannot be the basis for talks. Now that none of BiH’s citizens and leaders have the threat of violence or genocide pointed at their head, all Bosnians & Herzegovinians should be able to endeavour to a fresh start consistent with BiH’s long history of a multiethnic society and sovereignty and territorial integrity already recognized and endorsed by the United Nations well before Dayton.
Bosnian & Herzegovinian leaders should accept Mr. Dodik’s call for fresh negotiations independent from the dictates of foreign politicians, (and of course this should also be free of Belgrade’s leaders, if Mr. Dodik is sincere), but also liberated from the flawed decrees of the Dayton Accords. The history of the “foreign factors” in BiH at best has been inadequate and at worst detrimental. Regardless of other parochial considerations, consistent with the ECHR ruling a new BiH constitution would have to provide that all citizens are equal throughout the whole country without exception to ethnic identity and territory.
