122.
23
Office of the High Representative, ‘Speech by the High Representative, Carlos Westendorp, to the Peace Implementation Council’, (Sarajevo: 9 December 1997).
24
more robustly.25 In the end, the Bonn powers provided the OHR with more flexibility to push reforms forward.26
The Bonn powers have been widely used by the High Representative as an instrument for imposing the peace implementation process. By using these powers, the OHR developed itself into a central pillar of the constitutional order.27 Since December 1997, the OHR has played a pivotal role in Bosnia, especially as far as political institution-building is concerned. More than any other international agency, the OHR has been focused on (the functioning) of the state level institutions.28 Among the large number of international organizations present in Bosnia, the OHR can be regarded as the most influential especially since 1997.29 During the years of international administration, the Bosnians have shown more trust in the OHR than in their indigenous institutions and foreign governments have treated the High
Representative as the locus of power in Bosnia.30 The Parliamentary
Assembly of the Council of Europe concluded in 2004 that: ‘The scope of the OHR is such that, to all intents and purposes, it constitutes the supreme institution vested with power in Bosnia and Herzegovina.’31 The influential position of the OHR can be explained by the fact that it is the only international institution with the power to impose decisions and make legislative changes.32 It could do so, because the Dayton Agreement and the Bonn Powers empowered the OHR to substitute for domestic institutions when necessary.33
25
Cousens and Cater, Peace in Bosnia, 131.
26
Kurt W. Bassuener, ‘Lost Opportunities and Unlearned Lessons. The Continuing Legacy of
Bosnia’, After Intervention: Public Security Management in Post-Conflict Societies. From
Intervention to Sustainable Local Ownership, Anja H. Ebnöther and Philipp H. Fluri, eds. (Vienna: DCAF et al., 2005) 101-137, 108.
27
Knaus and Cox, ‘Whither Bosnia’, 7.
28
Chandler, Faking Democracy, 147.
29
Cousens and Cater, Peace in Bosnia, 129.
30
International Crisis Group, Thessaloniki and After II (Sarajevo/Brussels, 2003), 10, Balkans
briefing.
31
European Commission for Democracy through Law (Venice Commission), Opinion on the
Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative (Venice, 11 March 2005), 2.
32
Walter A. Dorn and Jeremy King, ‘Taking Stock of Security Sector Reform in Bosnia
1995-2002’, Bridges of Peace. Ten Years of Conflict Management in Bosnia, Charles C.
Pentland, ed. (Kingston: Centre for International Relations Queen's University, 2003) 63-96, 73.
33
4.1.2 The OHR’s decisions
Since December 1997, the High Representative intervened in Bosnian politics by way of making official ‘decisions.’ The High Representative’s decisions can be split into two categories: legislative acts and executive acts. The legislative acts comprise the imposition of political, economic and judicial legislation and the executive acts include among others the dismissal of Bosnian officials deemed to obstruct the peace process, the blocking of bank accounts of persons suspected to aid indicted war criminals, and the appointment of Bosnian officials. Table 4.1 shows the number of decisions made yearly by the High Representative from 16 December 1997 to 5 September 2008:
Table 4.1: OHR decisions from 16 December 1997 to 5 September 200834
Year Number of Decisions
1997 1 1998 29 1999 90 2000 86 2001 54 2002 153 2003 96 2004 158 2005 91 2006 57 2007 37 2008 12 Total 864
In total, between the first decision (16 December 1997) and the last decision (5 September 2008) included in this analysis, a number of 864 decisions were made. The years 2002 and 2004, when Ashdown was High Representative, show a clear peak. Since 2005 the number of decisions made has started to decline significantly. In order to better understand the development of the OHR’s interventions, it is necessary to know what kind of decisions have been made. Table 4.2 provides an overview of the decisions as related to specific policy fields.
34
According to the overview presented in Table 4.2, most decisions were made in the judicial field and in the field of ‘removals and suspensions from office.’ However, among the 108 decisions made in the category of ‘individuals indicted for war crimes’, a number of 68 decisions were in fact removals. Adding these 68 cases to the category of ‘removals and suspensions from office’, it shows that most decisions made by the High Representative were concerned with removals and suspensions. As is argued below, every removal or suspension should be considered as an infringement on the autonomy of the institution where the specific action takes place.
As is shown by Table 4.3, there are substantial differences between the different High Representatives when it comes to the number of decisions made in the implementation process. The first High Representative, Carl Bildt, did not have the Bonn Powers at his disposal and therefore did not have to make any decisions for his record.37 The Bonn powers were created during the office of the Spanish diplomat Carlos Westendorp and on 16 December 1997, imposing the Law on Citizenship, Westendorp was the first High Representative who made a decision based on the Bonn powers. In total, Westendorp would make 71 decisions in 25 months time. The successor of Westendorp, the Austrian diplomat Wolfgang Petritsch made a number of 252 decisions in about 34 months. The absolute record however for decisions made was set by Paddy Ashdown. He made no less than 446
35
Obtainable from: www.ohr.int (last visited on 20 January 2009)
36
The category ‘removals and suspensions from office’ also includes the rehabilitation of officials.
37
In this respect, it could be argued that during Bildt’s term in office as High Representative,
Bosnia was only an international administration de jure. The Bonn Powers were implicit in
the Dayton Agreement, but were not actually used.
Table 4.2: OHR decisions from 16 December 1997 to 5 September 2008 as related to specific policy fields35
Decisions related to: Number of
decisions
State symbols and state level matters 102 The economic field 95 The judicial field 177 The Federation, Mostar and Herzegovina-Neretva Canton 71
Removals and suspensions from office36 175
The media 18
Property laws, return of displaced persons/refugees, and reconciliation
118 Individuals indicted for war crimes in the former Yugoslavia 108
decisions during his administration of almost 43 months. High Representative Schwarz-Schilling made 46 decisions in 11 months and his successor Miroslav Laják 28 decisions in 15 months.
Table 4.3: Monthly average of decisions by each High Representative38 High
Representative
Number of decisions
Months in office39 Average of
decisions Bildt - - - Westendorp 71 25 2,8 Petritsch 252 34 7,4 Ashdown 446 43 10,4 Schwarz- Schilling 46 11 4,1 Laják 28 15 1,9
Looking at the average number of interventions per year made by every single High Representative, a steady increase can be detected until the office of Ashdown; from 2,8 decisions a month (Westendorp), to 7,4 decisions a month (Petritsch), to 10,4 decisions a month (Ashdown). Only with Schwarz-Schilling the average number decreased to 4,1 decisions a month. This decrease had actually started in the last year of Ashdown’s administration (2005), when he reached an average of 7.5 decisions a month. On the one hand, the initial increase indicates that from December 1997 to December 2004, the independence of Bosnia’s institutions from the OHR decreased. On the other hand, the decline in the number of interventions from January 2005 shows that Bosnia’s institutions were becoming more independent.
The OHR’s decisions were directed at the implementation of the Dayton Agreement. Given the imposed nature of the Dayton Agreement, any progress at the state level institutions depended heavily on the initiatives and work of the international administration. In its Luxembourg declaration of 9 June 1998, the PIC concluded that substantial progress had been achieved since the Bonn meeting. Among the achievements listed were: the common flag, passports, common license plates, a growing number of arrested war- crimes suspects, the creation of a number of multi-ethnic assemblies after the municipal elections of 1997, and new legislation on customs, privatization,
38
Obtainable from: www.ohr.int (last visited on 20 January 2009)
39
The number of months is calculated by counting the months between the first and the last decision of the High Representative. For Westendorp, 16 December – 30 July 1999; for Petritsch, 1 September 1999 – 24 May 2002; for Ashdown; 14 June 2002 – 31 January 2006; for Schwarz-Schilling, 9 February 2006 – 29 June 2007; and for Laják, 9 July 2007 – 5 September 2008.
foreign investment and state and entity budgets. However, the PIC acknowledged that almost all of these achievements had required international pressure or intervention and that the pace of implementation by the Bosnian institutions themselves was a serious matter of concern.40
Half a year later, during the Madrid meeting, the PIC was even more explicit: ‘Bosnia and Herzegovina’s structure remains fragile. Without the scaffolding of international support, it would collapse.’41 During the Brussels meeting in May 2000, the PIC was more positive about the stabilization of the security situation, the completion of the major physical reconstruction, the accelerating return of refugees and displaced persons, the establishment of the Brko District, and the strengthening of political pluralism. At the same time, however, it was acknowledged that these achievements were largely the result of intensive international efforts and the PIC expressed its dissatisfaction with the slow pace of implementation since the preceding ministerial PIC meeting in Madrid in 1998.42
By the time Petritsch assumed the office of High Representative, there was widespread pessimism about the direction Bosnia was heading. Bosnia needed a firm strategy in order to push the reform forward: ‘the pivotal factor in breaking the inertia in Bosnia was the decision that the status quo was untenable, and could only be changed by catalytic intervention from the OHR, with appropriate international backing.’43 The lack of support for the Dayton Agreement was reflected in the legislative and executive decisions that were made from 1997 to 2008. The Dayton Agreement and the Bonn Powers mandated concerning legislative decisions that the OHR substitute for domestic legislative authorities and impose legislation by initiating, amending or repealing laws. A law that was passed by the OHR went immediately into effect. In all cases, the text of the decision stated that it was prohibited to amend the law until it had been adopted as such by the domestic institutions. With that provision, domestic institutions were strongly encouraged to adopt the law themselves even after its imposition.44 In fact, the imposed law had entered into effect on an interim basis and it would only receive a permanent status once it was adopted by the Bosnian parliament. A clear example of a legislative decision of the OHR is the imposition on the Law on the Council of Ministers of 3 December 2002. The decision states: ‘The Law which follows, and which forms an integral part of this Decision shall come into effect as provided for
40
Peace Implementation Council, ‘PIC Luxembourg Declaration’, (1998).
41
Peace Implementation Council, ‘PIC Madrid Declaration’, (1998).
42
Peace Implementation Council, ‘Brussels Declaration’, (2000).
43
Bassuener, ‘Lost Opportunities and Unlearned Lessons. The Continuing Legacy of Bosnia’, 119.
44
in Article 47 thereof on an interim basis, until such time as the Parliamentary Assembly of Bosnia and Herzegovina adopts this Law in due form, without amendment and with no conditions attached.’45
The first imposition of legislation occurred on 15 December 1997 when the Law on Citizenship was imposed.46 The PIC had established a deadline for adopting the law which was not met. The Law on Citizenship clearly was a law with an integrationist objective. Much of the legislation imposed was legislation aimed at integrating the three constitutive peoples, such as the Law on the Flag (3 February 1998), the Law on a Uniform License Plate for Vehicles (20 May 1998) and the Law on the National Anthem (26 June 1999). Most laws and by-laws (or rule books) that have entered into effect have been initiated and drafted, at least for the most part, by the OHR.47 In the case of the Law on the Policy of Foreign Direct Investment for example, the draft law was written by the OHR and submitted to the House of Representatives on 12 February 1998. The House of Representatives, however, removed the draft from the agenda, after which the High Representative decided to impose it.48 The above mentioned Law on the Council of Ministers was jointly drafted by the OHR and by representatives of the House of Representatives in November 2002.49
While the imposition of legislation in the initial years of international administration might not be that surprising, the OHR was still issuing legislative decisions even after twelve years of international administration. Sometimes imposition was judged necessary, because of the lack of attention given by the Bosnian authorities to a certain issue. This was for example the case with the Decision enacting the Law on amendments to the criminal procedural code of Bosnia and Herzegovina. In the decision, the High Representative deplores ‘that the changes to legislation necessary to facilitate the prosecution and adjudication of the cases transferred from the ICTY [International Criminal Tribunal for the Former Yugoslavia, NvW] have not been given the attention it requires by the authorities in Bosnia and Herzegovina.’50 In other cases, such as in the Decision amending the Law on the Temporary Prohibition of Disposal of State Property of Bosnia and
45
Office of the High Representative, ‘Decision enacting the Law on the Council of Ministers of Bosnia and Herzegovina’, (Sarajevo: 3 December 2002).
46
Office of the High Representative, ‘Decision imposing the Law on Citizenship of BiH’, (Sarajevo: 16 December 1997).
47
Interview with an OHR official (6), Sarajevo 8 May 2006.
48
Office of the High Representative, ‘Decision imposing the Draft Law on the Policy of Foreign Direct Investment in BiH’, (Sarajevo: 5 March 1998).
49
Office of the High Representative, ‘Decision enacting the Law on the Council of Ministers of Bosnia and Herzegovina.’
50
Office of the High Representative, ‘Decision enacting the Law on Amendments to the Criminal Procedural Code of Bosnia and Herzegovina’, (Sarajevo: 13 April 2007).
Herzegovina, the OHR imposed legislation, because Bosnian authorities were not able to reach a compromise: ‘Recalling that, in its Declaration of 19 June 2007, the Steering Board of the Peace Implementation Council expressed deep dissatisfaction with “the three-year failure of the State and Entity authorities to reach an agreement on the issue of apportionment of State Property.’51
In addition to the legislative acts of the OHR, many decisions of the High Representative were executive decisions. The contents and character of these executive decisions varied considerably. The first executive decision was the establishment of an interim arrangement to manage the airport of Mostar (1 March 1998). Other examples of executive decisions are: the establishment of an independent experts commission to prepare the election law (1 August 1998); the decision to abolish the illegal municipality of Skelani and restoring the pre-war boundaries of the municipality of Srebrenica (5 December 2000); and the decision on police disciplinary proceedings (24 January 2003). However, the most salient and most discussed executive decisions were the decisions made concerning the removal and suspension from office of individuals who were accused of obstructing the implementation of the Dayton Agreement.
Between March 1998 and May 2008, the High Representative removed and suspended hundreds of officials. The first removal from office took place on 8 March 1998, when High Representative Westendorp removed Pero Raguz the Mayor of Stolac and a member of the HDZ. He was accused of hindering the return of Bosniak refugees to Stolac.52 A similar kind of non-cooperation in the field of refugee return led to the dismissal of the mayor of Drvar on 16 April 1998.53 The third dismissal took place on 28 August 1998 when the mayor of Orasje was accused of: ‘creating a political atmosphere in his municipality detrimental to the holding of free and fair elections.’54 In the end, most removals were based on non-cooperation with
51
Office of the High Representative, ‘Decision amending the Law on the Temporary Prohibition of Disposal of State Property of Bosnia and Herzegovina’, (Sarajevo: 19 December 2007).
52
This first dismissal by the OHR caused a polemic in Bosnian politics. The issue was raised to the highest political level and was discussed between Westendorp and the President of Croatia, Franjo Tudjman. Mirsad Fazlic, ‘Interview: Hanns H. Schumacher, Senior Deputy
HR: "Unreal Dreams Of Separation Of The HDZ Hard-liners”’, Vecernje Novine/OHR Press
Office 3 March 1998.
53
Office of the High Representative, ‘Decision removing Drago Tokmakcija from his position as Deputy Mayor of Drvar’, (Sarajevo: 16 April 1998).
54
Office of the High Representative, ‘Decision removing Marko Benkovic from his position as Mayor of Orasje’, (Sarajevo: 28 August 1998).
the International Criminal Tribunal for the Former Yugoslavia (ICTY).55 In practice that meant that many of the officials removed came from the Serb Republic. At the same time, a considerable number of Bosnian Croat and Bosniak ethnic nationalist hardliners was removed also. During an interview with the newspaper Dani, Senior Deputy High Representative Hanns Schumacher made very clear that the OHR would not tolerate Bosnian Croat obstruction within the Federation: ‘I am simply not interested in who does not want the Federation: this is a concept that we will implement, despite the resistance on the field, which undoubtedly exists!’56 In answer to the question whether the Bosniak community obstructed the Federation, Schumacher replied: ‘We dictate what will be done! Therefore, this [the Federation, NvW] is a concept that will be implemented jointly and we simply do not pay attention to those who obstruct! I think we have already proved that we can use the authorities that Dayton gives us and all those who resist will have to face the consequences.’57
When firing twenty two Bosnian officials on one day in November 1999, Wolfgang Petritsch declared: ‘Four years after Dayton, many of the forces who divided this country still remain in place. With their corrupting presence, those who wish progress find they are prevented or even threatened from abandoning parochial hatreds and shady practices. Ambassador Barry and I concluded that ownership could not take root with obstructionists still in positions of authority. It was with regret that we concluded we had no alternative but to remove 22 officials from their posts on Monday.’58 A peak of the number of officials fired in one day was reached with these removals.59 The first record number of officials removed in one day had been set by Westendorp with his dismissal of sixteen officials in March 1999. After the November 1999 removals, a new record was set by High Representative Ashdown on the first of July 2004. On that day, Ashdown fired sixty high ranking officials from the Serb Republic. He argued that they had failed to cooperate with the ICTY in The Hague, they provided assistance to war crime suspects (including Radovan Karadži and Ratko Mladi) and they were responsible for the failure of Bosnia to be
55
European Commission for Democracy through Law (Venice Commission), Opinion on the
Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, 23.
56
Emir Suljagic, ‘Interview: Hanns H. Schumacher, Senior Deputy HR: "We will break the
hardliners of the HDZ!"’, Dani/OHR Press Office 11 April 1998.
57
Ibid.
58