May high representatives in BiH amend Dayton Agreement by way of their decisions without a legal remedy?
Kaja Kallas (Photo: Olivier Matthys)
EEAS
Foreign Affairs Council
9A Rond Point Schuman
1046 Brussels – Belgium
According to the available information, we have received an impression that over the last 30 years the EU has had a very large influence on the events in the areas of the former Yugoslavia, Serbia and Bosnia and Herzegovina (BiH).
Unlike Serbia, which has long had its statehood, BiH was a part of another state, and gained its statehood by joining the UN only on March 6, 1992, at the beginning of the violent breakup of Yugoslavia. The violent dissolution of Yugoslavia, which was carried out contrary to the provisions of the Helsinki Charter, caused a religious war between Serbs, Croats and Muslims – and the latter took the name „Bosniaks“ by acclamation at the Council of September 28, 1993.
Armed conflicts that began on March 1, 1992, ended on December 14, 1995 with the signing of the Dayton confederal agreement as the optimal solution of the three peoples, with a minimum of joint institutions.
Five days before the signing of the Dayton Agreement, during an informal gathering of several countries in London, the so-called Peace Implementation Council (PIC) was promoted. The following countries entered into the PIC Steering Board: Italy, Germany, France, Canada, Japan, USA, UK, European External Action Service, European Commission and Turkey (on behalf of the Organization of the Islamic Conference).
In addition to containing the BiH Constitution (Annex 4, BiH Constitution, Art. 2) stipulates: “The rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols shall apply directly in Bosnia and Herzegovina. These shall have priority over all other laws.”
The BiH Constitution provides for the exclusive jurisdiction of the Parliamentary Assembly of BiH, as the highest body of the three equal-constituent peoples, to adopt and amend laws and possible amendments and supplements to the Dayton Agreement.
In order to facilitate the implementation of the Dayton Agreement – Serbia, Republic of Srpska, Croatia and the Federation of BiH („Parties“) concluded Annex 10 of the Dayton Agreement, by which they requested the UN Security Council to appoint a UN High Representative for BiH in accordance with UN Security Council resolutions, with the purpose: to monitor the implementation of the peace settlement to carry out the necessary coordination, to maintain close contact with the Parties to the Annex 10, to give them guidance, to report to the UN Security Council on work, etc. thus giving him practically the role of a mediator.
Contrary to the Dayton Agreement (ultra vires, nemo plus juris ad alium transfers poste quam ipse habet, quod ab initio vitosus est non potest tractu temporis convalescere), at a meeting held on December 10, 1997 in Bonn, Peace implementation Council – PIC adopted the conclusion that the UN SC High Representative for BiH may pass binding decisions which may include interim measures and other actions against public and other officials. Since then, the PIC Steering Committees, under the chairmanship of the high representative, through political directors or ambassadors, have established the positions or guidelines for the work of the high representatives.
Invoking the so called „Bonn Powers“, high representatives appointed by the UN Security Council, as well as the non-appointed Christian Schmidt – took over/usurped arbitrarily the competencies of the BiH Parliamentary Assembly by themselves: Founded The Court of BiH (Article 1 of the Law: in order to ensure the effective exercise of the jurisdiction of the State of Bosnia and Herzegovina and respect for human rights and the rule of law on its territory, the Court of Bosnia and Herzegovina is being established); founded the High Judicial Council of BiH (Art. 3. of the Law: The Council, as an independent and independent body, has the task of providing an independent, impartial and professional judiciary); amended the BiH Constitution; passed the amendments to penal and other laws; ousted dozens public and other officials of the Republic of Srpska; The High Representative Valentin Inzko passed the law that provided for a prison sentence of up to 5 years for negating the „genocide“; regulations on nationalization of forests, rivers, lakes and other property of the Republic of Srpska have been passed and so on.
The climax of the suspension of the Dayton Accords, the creation of legal uncertainty and strained relations between the three constituent peoples, occurred on July 1, 2023, when Christian Schmidt passed Article 203a of the Criminal Code, which provided for a prison sentence of 6 months to 5 years, for a person who fails to implement, fails to apply, fails to execute or otherwise fails to abide by the decision of the High Representative for Bosnia and Herzegovina, or prevents or otherwise interferes with the implementation, applying or execution of such a decision while imposing a security measure of prohibiting the exercise of duty.
Eight days later, the BiH Prosecutor’s Office formed a team of three prosecutors who launched an investigation against the President of the Republic of Srpska for failing to comply with Chrisitian Schmidt’s Article 203a. Criminal Code and, in one year, the Court has scheduled or held 27 hearings.
Since the PIC meeting in Bonn on December 10, 1997 until today, it has not been possible to contest/quash the decisions and laws of the High Representatives, which changed the Dayton Agreement, because the BiH Court and the BiH Constitutional Court have been declaring themselves incompetent for the decisions of the high representatives.
Even the provision of the Dayton Agreement did not help: that the European Convention on Human Rights and Freedoms should be applied primarily and directly in BiH and that an effective remedy was guaranteed against decisions of any authority.
Since EEAS implements the common Foreign and Security Policy of the EU to promote peace and since adopting conclusions and guidelines in the PIC Steering Board enables the High Representative to arbitrarily grab the legislative and constitutive functions in BiH and entities, for understanding we lack the explanations or answers regarding the following concerns or issues:
- May high representatives amend Dayton Agreement by way of their decisions without a legal remedy?
- May high representatives pass or amend laws falling under the jurisdiction of the BiH Parliamentary Assembly or entities’ parliaments?
- May high representatives bind the BiH Parliamentary Assembly or the entity’s parliament to adopt laws of predefined content?
- May high representatives, by their decisions, change the ratio/proportion of the entities’ territories in BiH, which was established and agreed in Geneva in 1995: FBiH 51%: RS 49%?
- Can the Constitutional Court of BiH take positions or opinions with force of a law?
- Is Serbia a member of the PIC or the PIC Steering Board?
- In determining the positions, opinions, guidelines, do the PIC or the PIC Steering Board consult the Contracting parties to the Annex 10 of the Dayton Agreement?
- Are EEAS representatives on the PIC Steering Board (political Directors, Ambassadors, etc.) independent in passing decisions and taking positions, or are they bound by the positions and decisions of the EEAS?
Democracy Development Foundation
Categories: Гостинска соба
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