Part two of a paper exploring how 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
As Etienne de La Boétie masterfully described in 1549e, every tyrant, every holder of an absolute power, forms a pyramid of influence over those who he rules;[xii] he primarily leans on a small number of supporters and followers ranked lower than he, who exercise an approximately equal amount of effective power. Those followers then lean on a larger number of their own followers or supporters who again exercise an approximately equal amount of power. Such a pyramid extends to the lowest ranks of common people, partisans and peasants, who represent the lowest stratum of society. The lowest stratum is actually the least burdened by the fact of tyrannical power – they do their normal jobs, while the tyrannical power appears to them only in the form of those who occasionally extract or collect taxes. The highest ranked are actually the most burdened by the power: they need to attend to those ranked lower than them, and they also need to follow closely, and sometimes make a wild guess about, erratic changes in the tyrant’s attitudes. Besides, the highest ranked supporters need to display a higher degree of ideological loyalty to the tyrant; hence the nature of the downward influence varies from stratum to stratum; in the middle strata such influence may be based entirely on a kind of tangible interest. Also, one should note that, legitimacy-wise, the strength of influences, from the top of the pyramid downwards, gradually decreases; for those positioned at the lowest ranks, the issue of which supreme power is actually legitimated normally makes no difference. However, for those positioned close to the summit, this issue is of the utmost importance and their bare existence often depends on it.
I quote this part of De La Boétie’s theory of ‘voluntary servitude’ to emphasize the fact that the High Representative to BiH, under the Bonn-mandate, is not a dictator in a classical sense of the word. He is a dictator carrying an additional baggage, or an institution with a legitimating chain of influences that does not extend only from the top to the bottom of Bosnian-Herzegovinian citizenry, but also points upwards to the ranks that actually stand higher than the HR. In other words, the HR is supposed to act along the political guidelines of the PIC, especially of the PIC’s Steering Board that represents the voice of major global powers including USA, UK, Germany, France, Turkey (on behalf of the Organization of Islamic Conference), Russian Federation, and the EU Presidency. Of course, the ideal condition would be one in which the PIC Steering Board members form an inverted pyramid, with the top of the pyramid acting as a hidden source of HR’s actions. Unfortunately, this is not so. The internal relations at the PIC have no discernible geometric shape, and today one can even plausibly argue that the PIC consensus concerning the future status and acting of the HR either unraveled already or is in the process of accelerated unraveling.
Those who followed closely the process of implementing of DFP under the heavy influence of HRs should not be caught by surprise. High Representative was exploited by the American foreign policy makers to take the process of implementing to a direction that was not foreseen by the original wording of the frame.[xiii] Such misguidance of the Dayton implementation, and subsequent violation of both the letter and spirit of DFP, had two essential effects: first, the BiH Federation, one of the two BiH entities, was transformed into an entity with de facto Bosniak majority domination at the central level of government and also in the sense of domination of ethnic representation through the cantonal levels. Secondly, at the expense of entities, the BiH state was given illegitimately additional powers that are originally intended to be exercised by the entities – that is, if one founds one’s legal reasoning on the premise that lex specialis supersedes lex generalis,[xiv] and if such premise effectively guides one’s interpretation of DFP. This process, run primarily by USA with some of its European allies, including primarily UK, was bound to cause a fair amount of friction and disagreement within the EU, and between some EU member states and USA, and also within PIC itself.[xv]
The American ‘mediators’, and de facto instructors to HRs,[xvi] justified this process by allegedly American system of liberal values. They kept claiming that they were supporting Bosnia’s multi-ethnic character, or BiH democracy, or individual rights of its citizens primarily.[xvii] However, their interference has in reality turned a Federation people, Bosniaks, into a fundamentally constituent one, while the other, the Croat, was turned into a ‘constituent minority’ in violation of both the letter and the spirit of DFP; also the American meddling alienated a large portion of the Serbs in Republika Srpska who are aware that the weakening of Srpska’s relative power implies the weakening of relative Serb influence in their role of constituent people to the BiH.
Now, at least from 2006 something interesting started happening. Interventions by HR commence to deepen and aggravate to a higher degree the conflict within BiH, but more importantly, they commence to act as a serious conflict-generator within PIC itself; the original intent, which was to use HRs as a primary means of stabilization of relations within BiH, produced a major side-effect and turned into its opposite; due to HR’s interventions over a longer period of time, a conflict emerged at PIC which then caused the worsening of the conflict within BiH too, which was fully predictable – the BiH parties are fully aware of the PIC members’ attitudes to the problem of implementing of DFP, and they treat some of the members attitudes and positions as both a source of counseling and a promise of at least informal alliance. One should also realize that, as a part of the same process, the figure of HR has been delegitimized: the fictions on which the status of HR depends are increasingly deemed as nothing but fictions. HR is thus increasingly viewed as but a part of the weaponry employed in a global struggle over the DFP implementation that has no inherent ethical or legal validity. Hence, as a part of the same process, it was brought to awareness of many participants and observers that HR is not self-instituted or non-opposable; and that he is neither an ‘immediate executive power’ nor ‘a supreme interpretive authority.’
Year 2006 marks the period of critical juncture. It was the year when Paddy Ashdown, the most aggressive of the high representatives, ended his mandate. Barely a month after the Parliamentary Assembly of the Council of Europe, in June 2004, hailed the fact that the number of HR’s interventions decreased as a sign of evolution of BiH democracy, Ashdown ‘pulled out the gun’ and, by a single signature, removed 60 officials of Republika Srpska at various levels, due to their, as Ashdown explained, ‘lack of cooperation in bringing Radovan Karadžić to justice.’ Such a move was rightly interpreted as an assault on both Srpska and the DFP. The detailed account of the complications that this Ashdown’s measure brought about is unlikely to be published soon;[xviii] however, as already mentioned, at least it has become fully visible that the HR interventions not only aggravate directly the conflict within BiH, but also have an international spill-over effect and threaten to deepen or worsen the conflict at the international level, which then again backfires on Bosnia’s internal relations.
It is important to emphasize that, following the end of Ashdown’ mandate, the PIC Steering Board decided to start preparations for closure of the Office of HR, that is, of the end to the Bonn mandate. The decision was explained by the thesis that it would be in the interest of all for BiH to take responsibility for itself and that, following the period of Dayton implementation, the time has come for the period of Euro-Atlantic integration.[xix] The decision was passed officially on June 23 2006, and I am almost certain that the Russian Federation threatened secretly with the use of veto at the UN Security Council against appointment of another high representative due to not only Ashdown’s massive ban, but also to the way DFP was implemented by that point. It was probably agreed behind the closed door that the start of the process of closure of the Office of HR would be one of the key conditions for the Russian non-use of veto powers at the UN Security Council. The problem is that, prior to his departure in February 2006, Ashdown persuaded the then chief EU negotiator for EU enlargement to add a special condition to the conditions BiH needs to meet to qualify for the stabilization and association agreement with the EU: the creation of a unified police force of BiH with the mandate of operating throughout the BiH, which has no foundation in the wording of DFP.[xx] In other words, Ashdown thus managed to re-generate once again both the conflict within BiH and the conflict within PIC itself.
Eight months after the decision to prepare for the closure of HR Office, and a few months before the departure of the HR who was expected to mark the end of the era of ‘international protectorate’ in BiH, in February 2007 the PIC Steering Board postponed the decision, and the mandate of HR was officially extended for the period of over a year, by June 2008, at which point the HR Bonn-mandate should have been really ended. Now, in the communiqué of the PIC Steering Board from February 2007 one can easily recognize the fact that international consensus supporting the Bonn-mandate of HR has in fact unraveled.[xxi] Predictably the Russian Federation adds a dissenting opinion to the document. It signals officially and clearly that, in its eyes, no further consensus on the need for HR is formed; however, it does not signal such a position by a head-on confrontation or by, for example, its departure from the PIC Steering Board, but by a verbal message within the given diplomatic frame.
One should also give consideration to two equally important developments: on two occasions, in 2007 and 2011, Republika Srpska succeeded to delegitimize some acting of HRs: in the first case, it managed to block Lajčak’s 19 October 2007 decision on a change of ethnic quota required to pass an official veto at the Council of Ministers and at the BiH Parliament;[xxii] in the second case, in 2011 Dodik managed to evade the authority of HR Inzko and to reach an independent agreement with Catherine Ashton, the EU special representative for foreign and security policy, concerning the need to reform judicial bodies at the BiH level.
I will draw this reflection to a close by an analogy. In his groundbreaking contribution to modern theory of sovereignty from 1576, the Six Books on Republic, Jean Bodin gives an account of an old Tatar people’s custom and ritual of appointment of their king: „….when their big king passes away, the prince and the people who enjoy the freedom of election choose one among the king’s kin as they will, except that the person has to be a son or a nephew; and then they put the person in a golden throne and address him in the following words: ‘We ask you, and beg you, to be our king.’ To this the king replies: ‘if this is what you demand from me, then you ought to be ready to do as I command: when I command that one is to be executed, one has to be executed straightaway, and the whole kingdom needs to be placed in my own hands.’ To this the people reply: ‘let is be so’, and then the king continues as follows: ‘As it comes from my mouth, my word shall be my sword’, to which everybody submits. Following this, they grab the king, take him off the throne, and then place him on a wooden board on the soil, after which the princes tell him the following: ‘Look upwards and get to know God, and then look at the wooden board on which you are now seated. If you rule well, you will get everything you desire. Otherwise, you will fall so low and be barren so of everything that you shall not be even in position to keep the board on which you are now sitting.’“[xxiii] In other words, in the Tatars’ case, the king’s appointers were reminding the king of the dependence of his mandate on his adherence to moral standards. King’s legitimacy is constrained by his good, or bad, rule. The violation of moral standards entails the King’s fall, and it is a fall to such a low level, as marked by the wooden board that probably symbolizes the possibility of total impoverishment, that an average king’s subject cannot experience it at all.
Today’s status of Bonn-powered High Representative to BiH should be compared with the status of the Tatar king who has, due to violation of moral standards as outlined by DFP, fallen lower than the ritual wooden board. However, the loss of the status is not translated yet into a concrete action, and is not conveyed yet to the ‘King’ himself. The consensus has unraveled, but the realization that it has indeed unraveled has not yet assumed the form of a serious and irresistible demand that the King be dethroned now. What are likely developments in the near future?
Viewing the relations from the perspective of the problem of Bonn-powered HR for BiH, further developments may take three directions:
- a) The status quo may be retained for an indefinite period of time. This means that HR continues exercising authority under the Bonn mandate, which allows him to interfere arbitrarily with the legal-political landscape of BiH, despite the unraveling of the consensus that should support his mandate. For the reasons explained in the second reflection, this direction is undesirable and unviable from the perspective of development of BiH as a complex multi-ethnic democracy. For the reasons explained in the third reflection, it is undesirable from the perspective of global politics too. It is clear now that further interventions by the HR, especially in the domain that overlaps with the Republika Srpska interests, are likely to generate further discord and friction at the international level, especially between the Russian Federation and USA, but also between the EU and USA. This is also bound to backfire on already fragile relations within BiH itself. In such a sense, the recent establishment of the connection between the problem of Ukraine and the problem of BiH, as voiced in some press by some former high representatives, is especially disconcerting. It unashamedly aims at resurrection of Cold War atmosphere and misrepresents the Russian Federation as a cause of global troubles;
- b) The simplest solution would be for the HR himself to hand back his mandate just as, prior to the Bonn conference, he assumed the mandate of his own. Then, at some future conference, the PIC could welcome such a development. This is the direction that I find most reasonable and potentially most beneficial for BiH itself. I should as well emphasize that such a development does not exclude the possibility that the HR continues with his engagement in BiH in his original, narrow, pre-Bonn mandate and role, as a key assistant to the peace process or as its chief facilitator or coordinator of international agencies. However, some complications may take place even as a part of this potentially optimistic scenario. For instance, who should formulate the decision by the HR on termination of his mandate, and how? This is an open and difficult question. Furthermore, based on the decision concerning the termination of the mandate, one could rightfully pose the question of how is it possible that the same peace agreement seemingly justifies both the narrow and the broad mandate of the HR. However, regardless of such questions that concern more or less consequential technical issues, one effect of the departure of Bonn-powered HR may really be troubling in a practical sense as, following his departure, the internal conflict may become more severe and lead to further resentment and disagreements also at the international level. Such likely worsening of the conflict in the post- ‘Bonn-powered HR’ era is due to two crucial reasons: first, at least one of the BiH parties is likely to ask for, or initiate, or press for a revision of all the key decisions by high representatives that expanded the central powers of BiH; secondly, it is clear that, from the beginning of the Bonn mandate till today, the relations between domestic actors have not improved, but worsened considerably. The time that could have been spent on reconciliation and recovery of trust, and most importantly, on development of democratic culture of dialogue between the local parties, was instead spent on HR’s interventions as well as on internal clashes, protests and slow-downs surrounding such interventions. In other words, it is quite possible that, following the return of HR to pre-Bonn period, the relations within BiH deteriorate to such an extent that the parties come close to the brink of a war. Here I will not further discuss the problem of wise preventive acting vis-à-vis such a possibility; I will only express my opinion that the concerned members of international community have a substantial capability to provide for a preventive mechanism and block the eruption of armed violence of a lower or higher intensity within BiH.
- c) It is possible that further developments will not take the direction of urgent departure of Bonn-powered HR, following which a further evolution of relations would be left entirely to the domestic parties; perhaps one could opt for a conditional closure of the Office of Bonn-powered HR, a closure that will be conditioned by a successful international conference resulting in an agreement on replacement of the Dayton Constitution with a different one. In other words, one could safely assume that, following all the interventions by HRs that inflated DFP and made it unsupportable by major local actors, it would be dangerous to leave the post-Dayton entirely in the hands of those actors. Then perhaps some new principles of a future and more just constitutional blueprint for BiH will be agreed starting with the assumption that BiH should be primarily founded on its own sources of legitimacy, not on international pressure or guarantee. Perhaps such an international conference could deliver a major result based on a consensus on principles. Additionally, a sincere offer of EU membership could be added as a key ‘carrot’ that would motivate the parties to reach the new consensus on new principles. However, the devil is in the detail, and this direction is as risky as the others; here I simply address, as a possibility, another strategy of formulating a global response to the problem of envisaging the future of BiH without a Bonn-powered HR.
In the given conditions, I do not think that I am able to offer a more exact prediction. Personally I would prefer the option b to c, and c to a. If I decide to consider primarily historical facts, my prediction is likely to be gloomy and discouraging; if I, in contrast, hold fast to the assumption that rational and peaceful control of international relations and global politics is probable, I tend to lean towards an optimistic prognosis. For a while, perhaps we should just settle for the sketchy trio of expectations that leaves no room for major surprises.
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.
If you are interested in writing for TransConflict, please do not hesitate to contact us with your ideas and suggestions!
12) De La Boétie, E. (2001), Rasprava o dobrovoljnom ropstvu (sa pogovorom C. Leforta) (“The essay on voluntary servitude; with a foreword by C. Lefort”), Beograd: “Filip Višnjić”, Serbian translation by I. Vejvoda, pp. 44-47
13) See my previous publications at www.idpi.ba; this fact was documented many times – one can discern it through Jim O’Brien’s public statements, and, not less importantly, through a statement by Paddy Ashdown (Dnevni Avaz daily, 16 May 2009); see also Adams, J. (2014), ‘Bosnia: Stabilization Stalled in Negative Peace,’ Alliance for Peacebuilding, http://buildingpeaceforum.com/2014/09/bosnia-stabilization-stalled-in-a-negative-peace/ (accessed on 27 September 2014)
14) According to lex specialis, the small number of the powers of central BiH Government, under the Dayton Constitution, are put in precise terms; the remaining powers are originally placed in entities; in the course of Dayton negotiations, and at the start of implementation of DFP, Holbrooke emphasized that the Dayton Constitution forms a community based on the following formula: two strong entities, one loose central government. Moreover, under the Dayton Constitution, potentially additional central powers, for instance, those that have something to do with ‘international legal personality of BiH’, are put in general and vague terms, and are thus a subject to interpretive controversy and conflict; hence the latter have the status of lex generalis.
15) For a more recent example, see Brunwasser M. (2011) ‘Bosnia flounders as powers argue,’ The New York Times 27 June, http://www.nytimes.com/2011/06/28/world/europe/28iht-bosnia28.html?pagewanted=all&_r=0 (accessed on 27 September 2014)
16) High Representative with a broad Bonn-mandate is a necessity in the condition when one aims at imposing an interpretation of a peace treaty that deviates from both the letter and the spirit (or, more precisely, the reasons) of the treaty; the Bonn-powered High Representative, who adheres to the letter and spirit of the treaty, is not a sensible category because, in the condition of his adherence to the letter and spirit of DFP, the High Representative should not need the Bonn-authority as his pre-Bonn authority would be sufficiently safeguarded by his reasons and reason-supported interpretations. One of the most important facts about the decrees by Bonn-powered High Representative is in their complete lack of explicitly formulated, understandable, and generally acceptable reasons of interpretations.
17) This is simply a misrepresentation of facts – whoever is aware of political values that inspired the American founding fathers is also aware that the American Constitution was founded on the need to prevent two major troubles: a potential tyranny of a majority over a minority; and a potential concentration of excessive powers within a single governmental body that would replicate a ‘tyrant’ or a ‘monarch.’ The notion of ‘BiH constituent peoples’ matches perfectly the first aspect, whereas the second one, which is also supported by the theory of inalienable rights and liberties from the Declaration of Independence, cannot be at all brought into harmony with the institution of Bonn-powered HR.
18) As to the heat this created within the Parliamentary Assembly of the Council of Europe, see Logan M. (2004), ‘Examining the High Rep’s Mantle’, Transitions Online, 21 July
19) http://www.ohr.int/pic/default.asp?content_id=37503 (accessed on 27 September 2014)
20) Parish (2007, p. 19)
21) http://www.ohr.int/pic/default.asp?content_id=39236 (accessed on 27 September 2014)
22) Parish (2007, pp. 20-21); see also Borić, F. (2008), ‘Spašavanje diplomate Lajčaka – slika i prilika odnosa međunarodne zajednice prema BiH,’ (Saving diplomat Lajčak – a paradigm of international community’s attitude to BiH) Status 13, pp. 52-56.
23) Bodin, J. (2002), Šest knjiga o republici (« Les Six Livres de la Republique »), Zagreb: Politička kultura, Croatian translation by Divina Marion, p, 36