The Bonn-powered High Representative in Bosnia-Herzegovina is based on four fictions – of self-constitution or self-grounding; the principled non-opposability to HR’s decisions; the immediately executive character of his decrees; and his a priori interpretive superiority.
By Dražen Pehar
For the subjects to accept the potestas absoluta of the sovereign requires that they regard him with terror, as indeed is the case of Medusa and Dionysos. Hobbes’s monster state and monster sovereign end up in orthodox company: among the demons, gods and idols of the heathen.”
Let’s start with an important legal fact that a large majority of commentators or analysts never took seriously: in 1997 the High Representative for Bosnia-Herzegovina (BiH) has of his own assumed all the constituent powers in BiH, supporting the expansion of his powers by the claim that this was in accordance with the Dayton Framework for Peace (DFP). The decision he made was, and could have been only, his own. It, for instance, could not have been a decision by the signatory-states to DFP, or by the witness-states, simply because those states did not have a more direct and independent role as a part of the peace implementation process (except for the part on ‘special parallel relations’ that is a discretionary right of co-signatories, the Republic Croatia and today’s Serbia). The only body that had a more direct and independent role was the High Representative (HR) himself (or itself). This is why, at the Bonn conference in late 1997, the Peace Implementation Council (PIC) simply “welcomes” the decision by the High Representative to use his broad powers that today we wrongly call ‘High Representative’s Bonn mandate’ (such powers were not given to him through the conference, but to his assumption of the powers was, as said, expressed ‘welcome’) that includes the power to dismiss elected officials, to impose or annul laws in Bosnia-Herzegovina, or to take any other measure he deems appropriate.
In other words, the PIC cannot be viewed or interpreted as a source of legitimacy of the decision; the decision was not an outcome of a debate, discussion, or a mechanism of democratic decision-making; it is an extension of a body that sprang from the body itself. Hence, in theory, no High Representative, acting under the Bonn mandate, has the duty to explain his own decisions to anybody. Under the Bonn mandate, he is a self-constituted institution that founds itself through an interpretation of DFP which is not, and does not have to be, explicit. The official grounds of the decision by the HR have never been made public. Carlos Westendorp, the 1997 HR, gave some comments in the local press that partially explain his decision in his role of HR; however, his comment hardly amounts to a legal interpretation, let alone justification. As I claimed elsewhere, right at the start it was impossible to provide for a sound legal justification of the Bonn-powered HR’s self-constitution.[ii]
In Legality and Legitimacy, a masterful legal-political analysis by Carl Schmitt, published just before the disintegration of Weimar Republic and the transition into the state of Nazi Germany, Schmitt refers to a possibility that is always open to the party winning an election: the party can use the so-called ‘supra-legal premium on political exercise of power;’ it can take the implementation of a constitutional frame to a direction that involves violation of the right of ‘equal chance’ to the remaining parties simply because it enjoys the privilege of making the first move, and because all legal remedies (for instance, an appeal by a minority party to the constitutional court) necessarily come late and take time that the victorious, and revolutionary, party can use to effect a radical alteration of the constitutional order. As Schmitt emphasized, the party can in particular effectively rely on the executive branch of power that acts through decrees, orders, ad hoc decisions, to undermine completely the existing constitutional order and assume all governmental powers.[iii] This is exactly what in 1933 the German National-Socialist party did. Now, have in mind that Schmitt discussed a possibility in principle; he referred to a threat that shadows all democratically-elected governments; the only thing that is really required for the ruling party to materialize such a possibility is to remove its signature to the foundational values of a constitutional-democratic type of government (such as justice, peace, stability, the rule of law, not of individuals or groups, and the separation of powers), or to reinterpret such values arbitrarily according to its own will, and endorse, and impose on others, the illusion that its own interest is indeed a public or common good.
It is interesting to note that the HR ascribed to himself primarily the role of the executive power, but not as a part of the tripartite constitution-based association of branches; he acts in the role of an executive that outgrows both legislative and judiciary power. In the hands of the HR the executive power is actually ‘discharged immediately’: his decrees must be implemented with no delay or mediation – his decisions have the force of unquestionable, non-opposable execution that is not channeled through a series of institutional intermediaries.[iv]
Now I will remind the readers of the words that Westendorp, a Spanish Ambassador, at the time of Bonn-empowerement used to explain his new role: he stated that, under DFP, he “has been empowered to interpret his own powers.”[v] We, naive Bosnian-Herzegovinian citizens at the time, were not consulting the DFP in order to check the real presence of the provision in the agreement. Of course, the provision is not there, while one that distantly reminds of it should be, under reasonable interpretation, given an entirely different meaning. However, we should note a more important matter: all institutions within a constitutional-democratic system are endowed with the power to interpret their own powers under the constitution. Actually, without such a power of self-interpretation, no institution is able to function properly. However, the idea that Westendorp smuggled through his official explanation is entirely different: it is the idea that the HR, under Annex 10, gives an interpretation of DFP in its entirety that is, by definition and a priori, superior to all the other, possibly competing interpretations. In other words, the essence of Westendorp’s words does not concern ‘the power of interpretation of one’s own powers’, but ‘the power to impose one’s own interpretation as inherently, automatically superior independently of the reasons offered.’ For a start, let us notice that the idea cannot be in principle reconciled with the intellectual pillars of democracy. There cannot be a document, a Constitution, or a Law, that could found such an institution and still be called a document on a democratic form of government.
The considerations given thus far can be presented in the form of a fourfold thesis: the Bonn-powered HR is based on four fictions: the first one is the fiction of self-constitution or self-grounding; the second one is the fiction of the principled non-opposability to HR’s decisions; the third fiction is one of immediately executive character of his decrees; and the fourth one is the fiction of his a priori interpretive superiority. Why do I call those things fictions? Simply because such a body cannot exist, or be valid, within any contemporary democratic frame. There cannot be a body that self-declares its own mandate and powers; there cannot be a body whose word is automatically executed (for instance, in all normal democratic systems a judicial decision is subject to strict methods and procedures of verification and execution in which the legislative and judiciary take part too – for instance, the members of parliamentary commissions or members, or appointed representatives, of government). Besides, the fiction of ‘immediate executive power’ is based solely on the presence of foreign military in BiH. Also, there cannot be a body whose legitimacy could not be questioned, or criticized or opposed, under some conditions. Finally, there cannot be a body to which all the other bodies should give a blind ‘hermeneutical’ trust in the sense of the body whose interpretations not only of his own, but also of the other bodies’, powers are so perfect that it must not be called to offer explicit reasons for its interpretation.
The topic of the origins of such fictions, or of motivation that was driving the international community at the time, deserves a separate and detailed analysis that here I cannot offer. It is possible that, to a large degree, some emotions, or the fresh memories of the war in Bosnia-Herzegovina, played a major part. BiH was viewed as an unstable and conflict-ridden social or political environment in which the peoples or citizens have not yet reached the desired degree of maturity that could enable them to run their own affairs independently. In such a context the idea that almost immediately arises is an idea of external mediator, or governor, who needs to keep things in control; an idea of a ‘fourth’, unemotional, impartial and unbiased, party who can pass sufficiently wise, compromise-based decisions, and is strong enough to impose them. ‘Leviathan,’ or at least a rudimentary image of Leviathan as a Hobbesian transformer of ‘the state of nature’ (which is the state of war of all against all) into ‘the state of orderly commonwealth,’ emerges as a nearly automatic response to all serious social-political conflicts. However, I also believe that today one can with no difficulty demonstrate that, in instituting the ‘Leviathan’ in BiH, already in 1997 some actors of international community have had a hidden agenda.
Putting aside such emotion-laden aspects of the need to endorse the fourfold fiction of the Bonn-powered HR, the fiction could have been very early, perhaps right at the start, viewed as at least potentially detrimental. It is clear that a change that is imposed externally, by an outside agency, has a shorter expiry date than a change that comes from within and involves actual transformation of the local agents in the sense of their political culture or democratic and institutional competence. Furthermore the conflict is not dangerous or detrimental in itself. It can be detrimental if it is not resolved through a reasonable dialogue, or when there is no readiness to strike a compromise, or when one of the parties rightly sense that their participation to the conflict is not on an equal footing. On the other hand, the conflict may provide a strong incentive to search for creative solutions and institute some new social and political forms of government that may even inspire some other states, nations, or political decision-makers. Such solutions are superior to those imposed by the Bonn-powered HR regardless of the latter’s assumed intelligence, fairness, or benevolence; now, in light of such creative solutions, the disadvantage of HR’s impositions can be reduced to the fact that an externally tailored, and short-term, arrangement is adopted instead of a locally produced, and long-term, one. In my mind, the idea that the HR’s interventions are flawed in such a sense is a weak thesis. In reflections offered here I advocate a much stronger thesis: for a number of clear and pertinent reasons, the acting of Bonn-powered HR is inherently damaging to Bosnia-Herzegovina as a state and also as an association both of entities and of peoples and citizens.[vi] This thesis could have been easily and, with much better consequences, endorsed already in early 1997 or in 1996. The fact that it was not endorsed then may be interpreted in at least three different ways: as an effect of incompetence, or as an expression of the lack of benevolence, or as a combination of the two factors. However, regardless of the issue of a proper explanation of the fact, the effects of such misapprehension are today very visible and easily discernible. Additionally, it is now clear which directions future developments are likely to take, which is the theme of my relatively brief fourth reflection.
Each and every High Representative acting under ‘Bonn’-mandate is caught in a sad and cognitively unsolvable condition. Each and every quasi-justifies his mandate by calling on democratic principles and claiming that the mandate serves the promotion of democracy in BiH. However, each and every high representative has promptly realized that the Bonn mandate cannot be at all reconciled to the principles of democracy including Bosnian-Herzegovinian one. Now, as I claim here, the crucial point to grasp is not only in the principled discord between the mandate and democracy; it is also in the ability of the mandate to prevent effectively development of democracy, that is, to act counter to all the key components of democratic ethos: if we envisage such an ethos as an assembly of virtues, rules, ideas and practices that support evolution of democracy, the very Bonn mandate has an adverse and discouraging effect on such an assembly. It may sound somewhat paradoxical, but is nonetheless true that the Bonn-mandate relies on a pre-modern communist mentality that marks a significant portion of Bosnian-Herzegovinian political elite and citizens, with notable exceptions of course; and additionally, such a mandate both reinforces and regenerates such a mentality.
A few examples suffice to bring home the key point. Drawing on July 2000 BiH Constitutional Court (to which a majority can be normally formed only if foreign benches tilt the balance) decision, in April 2002 High Representative issued a decision imposing amendments on the BiH Federation Constitution. The decision was declared at the end of his mandate, which is why it was wittily nicknamed ‘an airport decision.’ Now, from the perspective of democratic ethos, and regardless of possible ethnicity-related queries (let us forget about the issue of, for instance, Croat constitutionality), it is obvious that the decision cannot be reconciled with democratic ethos. In a normal democracy, such a decision should be drafted, debated, redrafted, formulated, and ultimately passed by parliament itself. Perhaps a parliament would decide not to adopt such a decision because it enjoys the right of its own interpretation of a constitutional frame. However, even if the parliament decided to accept a decision by a constitutional court as binding on all, it would be its sovereign right to discuss and interpret the decision on its own terms. A functional democracy can be contrasted to a non-functional one due to the ability of the former to pass a decision based on a consensus or on some other method of democratic decision-making preceded by a free, open, fair, and transparent public deliberation, which can thrive only on the foundation of democratic ethos. A parliament that simply has to adopt an imposed decision, which was not even straightforwardly deduced from the said July 2000 constitutional court decision, is not a democratic parliament. Contrasting a normal, democratic process of amending of a constitution with the way the HR simply announced the amendments to the Republica Srpska and the Federation constitution, one can with no effort draw the conclusion that the BiH has nothing to do with democracy. Constitutional amendments were imposed, but, from the angle of democratic theory and practice, no amending took place.
Petritsch was well aware of this: after his departure from the post, he used to state publicly that introduction of democracy into BiH was tried by non-democratic means, and that he personally sensed sadness about the country every time he had to impose a decision. Putting aside the emotional tone that may be misleading, his statement on non-democratic introduction of democracy demarcates successfully one fundamental and inevitable aporia involved in the institution of Bonn-powered High Representative.
Or, think of the notorious example of today’s High Representative’s, V. Inzko’s, decision to suspend the decision by BiH Central Election Commission (which was too established by a decree of Paddy Ashdown) in March 2011. De facto Inzko has blocked a democratic process. One can compare this with the blocking of a mechanism which is a part of a larger institutional-democratic package, and which makes sense only as a part of the package. Following the decision by the Central Election Commission, some other bodies were supposed to give their own view of the problem. This means that Inzko not only blocked, and annulled the results of, a single body; he effectively blocked the work of several other bodies that naturally function and operate within a larger democratic whole which reminds them unceasingly of the importance of democratic accommodation, compromise, and a sound judgment. In other words, Inzko’s decision deprived the local institutions of a potentially important and useful exercise in democratic and constitution-based methods and procedures of decision-making.[vii]
This leads us to the next, and equally important, issue: Bonn-powered High Representative not only adversely affects the development of democratic ethos within the BiH; he also has a detrimental, and in fact a highly preventive, effect on the rule of law in BiH. The body that is freed from the commitment to base its decisions on the laws binding on all simply cannot be beneficial to the rule of law, not only in BiH but in any other country. The body embodies an example of the license to act arbitrarily, to operate outside the legal frame, or to dismiss such a frame whenever it suits one. For instance, if one third of 17 amounts to 5 in a country, as aforementioned Inzko’s decision implied,[viii] then one could hardly believe that the population of the country is motivated to act in accordance with the law – the very content of the law has been treated with disdain. Hence the connection between the ‘logic’ of High Representative, on the one hand, and discouragement to respect and implement the rule of law, on the other, can be easily established. Examples are many, but here I will provide two that pertinently illustrate my key contention. Take the cases of removal of democratically elected officials: in a normal country that operates under the rule of law, such removal needs to take place in the form of a relatively complicated cluster of legal and institutional procedures. As a minimum, the targeted official ought to enjoy the right of a fair hearing; s/he could at least utter a number of propositions to try defending himself; or, in a more modern and evolved forms of democratic government, he could be assigned a pro bono counselor. In Bosnia-Herzegovina such developments do not take place when it comes to the decisions by the HR to dismiss or remove, or ban, officials not only from official posts, but also from participating in political life in any other form. Thus one can easily recognize that such HR’s decisions involve a flagrant violation of fundamental human rights.
For instance, the decision to ban Edhem Bičakčić in 2000 was passed simply for political convenience. After the owner of Dnevni Avaz, a Bosnian influential daily, changed his political course and put his daily into the service of Social-democratic party, which then international officials (like in 2011 within the BiH Federation) misrepresented as a potential source of true multi-ethnic democracy in BiH, Bičakčić called for judicial inquiry to check the tax-payment history by the Avaz owner. This is all that High Represented needed to ban Bičakčić due to ‘the undermining of DFP.’ It is also interesting to note that the BiH Constitutional Court passed in 2007 the ruling to the effect that such kind of removals from the office by a high representative involves violation of basic human rights. However, by another decree High Representative Schwarz-Schilling declared the ruling nil and void.[ix] Again one can easily see why the High Representative simply cannot be put into harmony with the notion and practice of the rule of law. In order to protect his Bonn-mandate, he has to annul a decision by a judicial summit of a country,[x] but he is not in position to annul it by reasons or through drawing on international human right norms. In fact he makes a mockery of ‘the rule of law’ in BiH, which deserves nothing but a cynical smile and despise.
Now we can move to a third, probably the most important, consequence of Bonn-powered high representation to BiH. It is not difficult to demonstrate, or grasp, that the HR has a very detrimental effect on the very dynamics of conflict within BiH. In a democratic country, the conflict of social, economic, political, or ideological nature is a welcome fact. It is only through the experience of conflict that the ability of a democratic system to respond to conflicts peacefully and constructively can be tested. Of course, one of fundamental prerequisites of such an ability lies in democratic and peace-loving culture generally, or, more specifically, in a culture that promotes dialogue in the sense of a confrontation between some social and political attitudes or ideas in the form of a reasoned debate and an exchange of plausible reasons that aim at compromise or a solution that all parties to the conflict should find satisfactory. However, this kind of dynamics is unlikely in BiH primarily because of the presence of a ‘third’ party that guarantees a temporary stability and that also guarantees that a decision will be made regardless of the ability of the local parties to arrive through dialogue at a compromise-defining solution.
In other words, at least one of the local parties, and possibly all of them, are demotivated by the very presence of HR; they are deprived of a potentially important inner inducement to try through an unmediated dialogue to arrive at locally constructed solutions binding on all the parties to the dialogue and negotiating process. In such a sense, Bosniak political elite carries a special responsibility because, considering the past history of HR’s acting in BiH, they are used to the expectation that HR will continue imposing solutions regardless of their own will to create a dialogical relationship with the interlocutors from the RS or within the Federation. In their eyes, the HR has become a deus ex machina, or ‘Santa Clause,’ as some officials from within the Office of HR cynically call him, who quasi-guarantees the sovereignty and indivisibility of the country, which is a pure fiction.
Following his assumption of ad libitum powers, Carlos Westendorp himself gave the most plastic description of such constellation; as Paul D’Amato quotes, “he [Westendorp] once told a Bosnian periodical that if Bosnia’s elected officials cannot ‘agree about some decisions, for example the passports, the license plates, the flag…I will stop this process of infinite discussions. In the future it will look like this: I will give them…a term to bring a certain decision, that is, to agree about some decision. If they do not, I will tell them not to worry, that I will decide for them.'”[xi] Now we can see in plain sight where the key problem comes from. The parties need not worry where the negotiating process takes them. This means that they are free to engage in the process without a serious commitment or responsibility. This further means that they are all free to continue posing maximalist demands or claims. And, this also means that they need not think of the ways to influence their negotiating partners by reasonable and valid arguments. In other words, this altogether means that HR signals directly to the local parties to continue with their conflict and stall a real progress in the sense of cultivation of the ability to negotiate solutions internally. Their inability to do their job ensures a job to him. This is why the figure of HR has such a detrimental effect on the internal dynamics of conflict within BiH. He simply freezes, and occasionally unfreezes, the conflict while the local political actors and elites make no progress in terms of their fundamental attitudes to the conflict. HR prevents the local parties from developing a crucial, and for democratic ethos indispensable, conflict-related virtue: to recognize in the conflict a chance to accommodate and test dialogically their own cognitive skills in legal-ethical-political realm, without which negotiating cannot be successful.
The conclusion of this reflection leads us immediately to the next that deals with the impact the HR has on the dynamics of a wider conflict which involves not only the local, but also the global actors of the international community.
Dražen Pehar has a PhD in politics and international relations from Keele University (SPIRE 2006), holds an assistant professorship (BiH) in the philosophy of law and in politics with sociology. Dražen is a DiploFoundation Associate, and previously served as Chief of Staff to the BiH Federation President (1996) and as a media analyst to the OHR (1999/2000). Dražen is also part of the Institute for Social and Political Research (IDPI), a member of the Global Coalition for Conflict Transformation.
The second part of this paper will be published tomorrow.
1) Tralau, J. (2007), ‘Leviathan, the Beast of Myth: Medusa, Dionysos, and the Riddle of Hobbes’s Sovereign Monster’, in: The Cambridge Companion to Hobbes’s Leviathan (ed. P. Springborg), Cambridge: Cambridge University Press, pp. 61-81, p. 74
2) For more detail see Pehar D. (2012), ‘Bosna i Hercegovina kao veleposlanstvo Visokog Predstavnika – republikanska kritika’, Političke analize (Zagreb) 10, pp. 3-9; available also from http://www.fpzg.unizg.hr/docs/PA/Pehar_tekst.pdf (an English version available from http://www.academia.edu/935704/Bosnia-Herzegovina_as_the_Embassy_of_the_High_Representative_A_Republican_Critique); see also an excellent analysis by Baros, M. (2010), ‘The High Representative for Bosnia and Herzegovina: A Requiem for Legality’, European Journal of International Law, http://www.ejiltalk.org/the-high-representative-for-bosnia-and-herzegovina-a-requiem-for-legality/ (accessed on 27 September 2014)
3) See Schmitt, C. (2004), Legality and Legitimacy, Durham & London, Duke University Press, translated by J. Seitzer, pp. 31-35
4) Related to this, in late 1920s Carl Schmitt and Hans Kelsen famously debated the question ‘who ought to be the guardian of constitution?’; Kelsen advocated the view that such ‘privilege’ ought to be attributed to constitutional/supreme court, the supreme legislative body; Schmitt supported the view that it ought to be attributed to the president as the supreme executive power; see, for example, Schmitt, C. (1929), Der Hüter der Verfassung, Archiv des öffentlichen Rechts, Neue Folge 16 Band, Tübingen: J.C.B. Mohr (Paul Siebeck). For my own take on the issue of ‘ultimate constitutional interpreter,’ see Pehar, D. (2014), ‘Ambiguity, Leviathan, and the Question of Ultimate Interpreter,’ Prolegomena 13:1, 21-44, available from http://hrcak.srce.hr/121954 (accessed on 27 September 2014)
5) Westendorp, C. (1997), Interview, Slobodna Bosna (Sarajevo weekly), 30 November, pp. 5-7
6) Hence the key thesis of this essay is opposed to one advocated by Henda, K. (2012), ‘What role for the EU Special Representative in Bosnia and Herzegovina after Lisbon?’, Centre for Southeast European Studies, University of Graz, Working paper no. 2, http://www.suedosteuropa.uni-graz.at/sites/default/files/publications/WP2%20Henda%20Sept%202012.pdf (accessed on 27 September 2014); I consider Henda’s arguments as based fully on the ideology of liberal interventionism – for example, on p. 30 he frames the debate between those who support the Bonn-powered HR and those who oppose such HR as a debate between ‘Bosno-philiac’ and ‘Bosno-phobic’ views. His classification puts me into the camp of ‘Bosno-phobiacs’ that includes David Chandler, Robert Hudson, Gerald Knaus, Miroslav Baros and Matthew Parish, among others.
7) See also Kostić, R. (2011) ‘Education through regulation? External intervention in domestic politics in post-Dayton Bosnia and Herzegovina’, in: Fjelde H., Höglund K. (eds.), Building Peace, Creating Conflict? Conflictual Dimension of Local and International Peacebuilding, Nordic Academic Press, pp. 105-129; it is interesting to note that in endnote 29 (p. 129) Kostić emphasized the following: “During his lecture and visit to the United States Institute of Peace on May 10 2011, the HR Valentin Inzko announced that he was to withdraw his decision upon his return to BiH in order to normalize the situation in FBiH. The media in BiH broadcast this news, yet upon his return the HR accused the newspapers of misleading the public, despite the fact that his USIP lecture is a matter of public record with a recording available online (Dnevnik 2011).” Unfortunately today (27 September 2014) there is no audio-record of Inzko’s lecture at the USIP-webpage (but on the webpage there is a link to the record!).
8) This is so because Inzko’s March 2011 decision supported the party that formed the Federation government based on 5 Croat votes in the Federation House of Peoples, despite the amended constitutional requirement to form a government based on no less than one third of 17 Croat representatives.
9) Parish, M. T. (2007), ‘The demise of the Dayton protectorate’, Journal of Intervention and State Building, Vol. 1, special supplement 1, pp. 11-23, p. 16; the essay also available at http://www.matthewparish.com/pdf/JISB%20BOS%203%20-%20Parish.pdf (accessed on 27 September 2014)
10) In 2011 one official from the Office of HR told me that “the HR would soon start permitting the BiH Constitutional Court to revise his decisions;” the official gave me no hint of his possible realization that such a permission is fundamentally irreconcilable with the theory and practice of the rule of law.
11) D’Amato, P. (1999), ‘Bosnia: Model for a New Colonialism’, International Socialist Review 8, http://www.isreview.org/issues/08/bosnia.shtml (accessed on 27 September 2014)