Tuesday, December 2, 2008

#528 INTL - Serbia Exports Kosovo Crisis to Bosnia and Herzegovina

National Congress of the Republic of Bosnia-Herzegovina


No. 528

March 2, 2008



1. Serbia Exports Kosovo Crisis to Bosnia and Herzegovina

1.1 Dodik Unilaterally Takes away Bonn Powers from Europe

1.2 Kosovo is not a legal precedent in international law


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1. Serbia Exports "Kosovo Crisis" to Bosnia and Herzegovina

1.1 Dodik Unilaterally Takes away Bonn Powers from Europe

Republic of the Serbs (RS) Premier Milorad Dodik, dissatisfied with the decision of the Peace Implementation Council (PIC) that the Office of Europe's High Representative (OHR) in Bosnia and Herzegovina will to hold on to the Bonn powers, decided to take away those powers himself.

Namely, upon his return to Banja Luka from Bruxelles, Mr. Dodik declared to the press that the RS will reject any attempt by the OHR to use the Bonn Powers: "Absolutely, it will not be allowed, that any individual becomes subject to the Bonn powers of the High Representative, except those involved with war crimes and those being processed by the court system, nor will we accept the imposing of any laws or regulations by the OHR."

This is a huge challenge to the authority of OHR and PIC. If the OHR and PIC simply allow such statements to be made without consequences, it would become very clear that the Dayton process no longer applies. Even by simply allowing such rhetoric in the media, the international guarantors of peace in Bosnia would look weak and foolish in the eyes of the free world, and especially in the eyes of the Bosnian people, victims of genocide, who have thus far put their trust in the same international community.

More importantly, this course of action by the RS government represents a unilateral withdrawal from obligations assumed under the Dayton agreement.

The OHR and PIC have two choices for how to respond. They could try to salvage Dayton and call the bluff of the RS, by using the Bonn powers to remove Mr. Dodik. Or they could accept that Dayton has failed and that this decision by Premier Dodik is just a formal confirmation of that.

If the PIC does give up on Dayton, what becomes the legal situation in Bosnia? Do the entities become states? The answer is no. The Dayton Agreement is not different from any other legal agreement in that if the signers withdraw from it, or refuse to adhere to it, the matter reverts to status quo ante, or the last legal state that had existed before the agreement was signed. In the case of the Dayton agreement, status quo ante is the constitution of the Republic of Bosnia and Herzegovina, without ethnic entities.

It is important to clarify further this question. This week's PIC conclusion -- an English language document that has been posted on the OHR website -- states that Bosnia's: "... territorial integrity is guaranteed by the Dayton Peace Agreement". This statement is interpreted by some malicious Bosnian politicians and media that the territorial integrity of Bosnia is ONLY guaranteed by the Dayton Peace Agreement. The implication of that false interpretation is that Bosnia and Herzegovina will cease to exist when Dayton inevitably fails. But the PIC statement above is just a simple paraphrasing of the Dayton Agreement Annex 4. Article I.1., which states that Bosnia and Herzegovina is not ended or begun in the agreement, but continued with a modified internal organization, and that the agreement does not put into question its internationally recognized borders. Therefore, if Dayton fails, or if the signers withdraw from it, Bosnia and Herzegovina will revert to status quo ante -- a state within its internationally recognized borders, and without the ethnic entities.

Both Raffi Gregorian, Deputy High Representative to Bosnia, and Charles English, U.S. Ambassador to Bosnia and Herzegovina have both confirmed this in media interviews this past week. Mr. Gregorian said, in Banja Luka's "Nezavisne Novine" that calling into question the Dayton Agreement is calling into question the existence of the RS itself. Mr. English similarly linked the existence of RS to Dayton, while emphasizing that Bosnia and Herzegovina existed before and independently of Dayton.

This is another attempt at blackmail of the international community by Serbia and Serbia’s proxy in Bosnia – the RS. Hopefully, this time the EU and the world will not give in to blackmail.

Finally, we note that Serbia has been using Kosovo’s independence to both inflame the militant nationalist sentiment inside the RS, and to argue for the separation of RS from Bosnia. Yet, the connection and similarity that Serbia cites between the cases of Kosovo and the RS are not grounded in facts. The following is a brief explanation of the legal argument for the independence of Kosovo, from which it is clear why it is a special case that cannot be compared to the status of RS.

1.2 Kosovo is not a legal precedent in international law

According to the last legal constitution of Yugoslavia, the autonomous province of Kosovo had the same right of self-determination that all the Yugoslav republics used in order to gain internationally recognized independence. In fact, it was Milosevic's forcible and illegal change of the constitution regarding Kosovo's autonomy that led the republics to declare independence in the first place. It was illegal, because it violated constitutionally proscribed procedure for amending the constitution.

Later, Serbia’s military attempted to forcibly remove the two million ethnic Albanian citizens of Kosovo by replicating the campaign of violence, rape, intimidation and murder which had been successfully used to create the RS as an ethnically clean Serb territory on half of Bosnia. It did not succeed in Kosovo largely because of NATO intervention.

Therefore, Serbia never had the legal right to hold Kosovo, and a strong moral argument exists for independence of Kosovo.

Regardless of what people think of Bush administration policies in other parts of the world, recognizing the declaration of independence by Kosovo's parliament is one they absolutely got right.


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