The Silent Passing of Europe’s Proconsulship in Bosnia

Last Friday, June 10, Bosnia’s High Representative, Valentin Inzko, lifted the suspensions from public office of virtually all the remaining officials subject to his predecessors’ bans.

He removed the blockages of all individuals’ bank accounts frozen by prior High Representatives’ orders and lifted the restrictions on the finances of the Serbian Democratic Party, SDS, that have been in place for the better part of a decade.

These are very significant steps. Indeed, one could might say that an era of tyranny has drawn to a close.

Since December 1997, successive High Representatives have used repressive measures against Bosnian politicians to force the country to develop in the direction that the international community desires.
 
Initially, a series of local mayors were dismissed from office for presiding over failures by the OSCE to achieve substantial refugee returns. These decisions were arbitrary. No evidence was presented against the officials and no studies were undertaken of their work.

The individuals were simply declared complicit in failing to facilitate return of refugees and fired with immediate effect. They had no opportunity to respond to the allegations and no right of appeal or review. All had been democratically elected.

They were also banned from holding further public office for an indefinite period of time, a severe burden in a post-conflict economy with few jobs of substance in the private sector.

A step change followed with the dismissal of Dragan Cavic, then Vice-President of SDS, from his position as a Republika Srpska parliamentarian in October 1998.

He was the first senior official to be removed from office by the High Representative. His crime was to give a political speech about the then unfolding Kosovo crisis that displeased the High Representative.

In March 1999, the President of Republika Srpska, Nikola Poplasen, was dismissed for refusing to support a minority coalition government led by Milorad Dodik, now President of the Republika Srpska.

Peremptory sackings were subsequently used as a policy instrument, as the Office of the High Representative transformed itself into an absolutist colonial governor.

Laws and policy initiatives for Bosnia were conceived and drafted by foreigners in the hallways of the OHR; elected officials would adopt and implement them or be dismissed.

Mass dismissals became common shows of force.

High Representative Wolfgang Petritsch dismissed 12 people - and imposed 24 laws and amended the constitutions of both entities - in his last two days in office.

Ashdown dismissed some 58 officials on one day in June 2004. The so-called “Bonn powers”, named after the international conference that created them, were used with increasing frequency and capriciousness.

Some of the most startling exercises of this unrestrained authority took place quite late. In July 2007, High Representative Miroslav Lajcak accused a hitherto obscure official, Dragomir Andan, then deputy head of Police Education in Republika Srpska, of supporting the former Bosnian Serb leader, Radovan Karadzic.

Lajcak not only fired him but confiscated his identity documents - and those of 90 other people - and ordered the police to investigate him. That September, his deputy, Raffi Gregorian, fined a Brcko District parliamentarian two months’ salary for making an obscene gesture on television.

Bosnia’s Constitutional Court, complaining of failures of due process and of the lack of a right to a fair trial inherent in the OHR’s methods, declared that the Bosnian courts should review OHR’s decisions.

The OHR annulled its judgment and threatened any judge with the same sanctions should he or she seek to implement the Constitutional Court’s ruling.

OHR dismissals were routinely phrased in barely comprehensible terms. The following was typical: “As a constituent of the current political culture within Republika Srpska, [name] is derivatively culpable for contributing to the institutional failure to purge from the political landscape of conditions conducive to the provision of material support and sustenance to individuals indicted [by the International Criminal Tribunal for Yugoslavia]”.

The OHR maintained that individuals removed from office were part of an extended support network throughout Republika Srpska for Karadzic and the former Bosnian Serb commander Ratko Mladic.

But no evidence of this was presented at the time. In the end, both Karadzic and Mladic were found in Serbia, not in Republika Srpska.

In their final years on the run, both appear to have survived without external support. These fugitives evaded capture for so long because the government of Serbia did not deem their arrests convenient until relatively recently.

The real motives for the OHR’s dismissals had nothing to do with Karadzic or Mladic. The High Representatives pushed a model of central government far beyond that anticipated by the 1995 Dayton constitution.

Serbian and Croatian politicians had no desire to see the creation of a central state, which they anticipated would be dominated by Bosnia’s Bosniak [Muslim] plurality.

Hence, their compliance had to be secured by threats. Dismissals were used as tools of political coercion, to force recalcitrant Bosnian politicians to do what OHR wanted.

They were the principal instruments in a novel model of neo-colonial administration of a post-conflict state. It is for this innovation that historians will principally remember the OHR.

But this model was not sustainable. Unless the international community was going to run Bosnia as a colony indefinitely, sooner or later the dismissals would have to stop.

At that point the pressure upon Serb and Croat politicians to accede to a centralising state-building agenda would be relieved and they would revert to supporting their former goals.

This helps explain Bosnia’s steady disintegration since 2006, when Ashdown’s departure coincided with the rise to power of an aggressive Bosnian Serb leader, Milorad Dodik, unsullied by wartime associations and thus unsusceptible to the High Representatives’ threats.

To his credit, High Representative Valentin Inzko has realised this. The OHR is on its very last legs. Although its death has been drawn out in an unnecessarily tortured manner over the past five years, everyone realises that the institution has lost all credibility.

In last month’s crisis over a threatened referendum in Republika Srpska, the OHR played no role. The affair was brought to a conclusion by concessions from Catherine Ashton, the EU’s head of foreign policy, who travelled to the Bosnian Serb capital to reason with Dodik in person.

Inzko, whose mandate runs until 31 August, views his draconian powers with distaste. It seems unlikely that a credible replacement for him can be found; when his predecessor resigned, several candidates turned down the role down before the previously unknown Inzko agreed to do it.

The High Representative, therefore, is therefore making final preparations for his organisation’s closure. Chief amongst these measures is the rehabilitation of all those dismissed and banned for life from public office. On Friday, Inzko rehabilitated almost everyone.

Yet this welcome measure is not the end of the problem. Bosnian and international courts will spend several years hence adjudicating compensation claims for breaches of the affected individuals’ human rights.

Given the large number of individuals affected, the size of these claims may be substantial, yet it remains unclear who will satisfy them. The OHR has no money and the Bosnian state has little spare cash.

Ultimately the intervening powers responsible for creating the OHR may have to foot a sizeable bill for this foray into internationally sanctioned despotism.

In lifting the OHR’s remaining bans, Inzko has quietly conceded that OHR no longer has the moral authority to dismiss people from public office or to punish them by international decree. As a civilised advocate of European values, he considers the use of these powers out of place in a modern democracy.

In taking this decent stance he deserves to be praised also because his embrace of principle is likely to subject him to attacks. Following his abdication of the Bonn powers, no domestic tool remains to prevent Bosnia’s Serbs and Croats from pursuing their secessionist goals.

If Bosnia and Herzegovina collapses over the coming months, the international community will find it convenient to blame Inzko.

We will hear complaints about his weak leadership and lack of resolve in letting Dodik push the country to the brink of failure. Now that the period of pro-consulship is over, the international community will need a scapegoat for the fact that its labours over the last 15 years have come to so little.

The Americans in particular will inveigh against European weakness. They will not wish to accept that their heavy-handed model of state-building, pioneered by Richard Holbrooke in Bosnia and Kosovo, has proven unsuccessful.

Once Inzko departs, the OHR will be eclipsed by Peter Sorensen, the recently appointed head of the EU delegation to Sarajevo. When Ashton established this new position at the end of May went it aroused relatively little comment. But its significance is profound.

It represents a dramatic change of emphasis from the American model of intervention to the EU approach pioneered in Macedonia.

Sorensen’s instructions are to let Bosnian politicians do what they will, at least in the short term; but whatever the country’s future, it is only by improving the quality of public administration and the courts that Bosnia may reap the benefits of ever closer association with the EU.

As Bosnia sees its neighbours move slowly towards EU membership, its people may long for the same results. In turn they may demand that their politicians put their differences aside and pursue the same goals.

This “soft power” strategy carries its own dangers. It risks underestimating the depth of Bosnia’s ethnic animosity, which may impede meaningful political cooperation, whatever the external incentives.

It assumes a quality of maturity to Bosnian democracy – in which the electorate can be expected to vote for the most economically beneficial outcome – which so far has proven absent.

The most desirable solution for the future of Bosnia may be as a radically decentralised state that maintains formal unitary sovereignty only in name. But such an approach would entail dismantling many of the institutions of central government that the OHR previously created.

If the EU tries to resist this course, it may perpetuate Bosnia’s political crisis in much the same way that the OHR has done.

We are on the brink of a profound change in the international community’s attitudes towards Bosnia.

Bosniaks will not like it because they perceive the authority of OHR to have been exercised mostly in their interests. Croats and Serbs will welcome it because they will be able to advance their agendas to dismantle the central government institutions that successive High Representatives compelled them to obey.

Many dangers lie ahead if the transition is not managed with care. But those concerned for democracy and the rule of law should admire Valentin Inzko for finally jettisoning a discreditable model of building states.

International officials cannot credibly exhort Bosnian leaders and politicians to observe standards of European governance set out in the European Convention on Human Rights if they do not submit to those standards themselves.

Matthew Parish is an international lawyer based in Geneva. He was formerly the Chief Legal Advisor to the International Supervisor of Brcko, and is a frequent writer on Balkan politics and current affairs.

His first book, “A Free City in the Balkans: Reconstructing a Divided Society in Bosnia”, is published by I.B.Tauris. His second book, “Mirages of International Justice: The Elusive Pursuit of a Transnational Legal Order”, is published by Edward Elgar. His new book, “Ethnic Civil War and the Promise of Law”, will be published by Edward Elgar in 2012. www.matthewparish.com