October 09, 2013
TheSrpskaTimes

For more than twenty years, the International Community is a guest and host in versatile forms in BiH. What have foreign diplomats and mediators done, what national authorities have not done and what might happen if foreigners go home – these are some of the hottest, and, unfortunately, only one day long political questions. Answer to the question why high, special and other representatives of the International Community and its smaller parts are still present in BiH? – actually is a new question: Has a persistent peace been achieved in BiH?

By: Jelena Stanišljević

‘One thing is sure. We are still here. Our offer for help and assistance still stands’, said Peter Sørensen, Head and Special Representative of the EU Delegation to BiH. Two decades of international presence in BiH stand in the back of this correct and even fair offer. During this period, BiH experienced dissolution of one state, declaring independence of another one, bloody war with even bloodier consequences and difficult after-war rehabilitation and reconstruction, starting with literally destroyed lives, houses, economy, industry, infrastructure, to institutions and state, and now is sliding in unachievable delay against all the other countries, which, likewise, went the same route more or less. To be honest, other states resulting from dissolution of Yugoslavia did not experience such a torturing war confrontation, but this, especially from today’s point of view, does not at all justify so huge delay of BiH against Croatia as a country-full member of the EU, or Serbia, which is about to start negotiations on membership. During all this time, BiH is identifying those who are responsible for delay in processes of Euro-Atlantic Integrations. National politicians try to get responsibility for almost all the problems over to the International Community, especially referring to the Office of the High Representative. Mandate of the High Representative is defined by the Peace Agreement and UN Security Council Resolution, whereas mandate of the Peace Implementation Council Steering Board is defined by conclusions of the International Conference, which stipulate that the Council Steering Board provides the High Representative with the political guidelines for peace implementation. Considering the fact that political situation in the region was very unstable in the first several after-war years, the Peace Implementation Council suggested provision of new authorizations for the High Representative in crucial fields of institutional reform, essential legislative and employees of the state-public agencies. Afterwards, on December 19, 1997, the Bonn Powers were confirmed by the UN Security Council through Council Resolution 1144. However, not even additionally, the Peace Implementation Council was provided with authorities to make decisions on the Bonn Powers or to grant the High Representative their use. Their use was left exclusively to assessment of the High Representative. This very, pretty confusing subordination is a base for Hamlet dilemma should or should not the OHR in BiH mandate end, regardless the form of its implementation.

Since the issue of closing OHR was legal and became political issue in time, there was another misrepresentation created. Spin is as follows: the Peace Implementation Council Steering Board is authorized to decide when the OHR is to be closed. But, in fact, it sounds completely different: mandate of the High Representative and his staff is defined by the Annex 10 of the Dayton Peace Agreement and was confirmed by Council Resolution 1031, and all this by respecting request of the signatory Parties of the Peace Agreement to monitor implementation of the Peace Agreement. Moreover, in fact Council Resolution 1031 confirmed that the High Representative represents the last instance in interpretation of civil implementation of the Peace Agreement. The Peace Implementation Council has always had its place in the sense of giving guidelines, but had no right in making decisions on when to close the OHR. In such a confusing situation, again, another issue arises. Defining the 5+2 Agenda as a crucial condition for closing OHR separates that question from the role of the OHR, which is based on the mandate confirmed by the UN Security Council. Even if there was a list of the OHR assignments that was cleared (as supposed by the 5+2 Agenda), and has not been yet, the fact is that the OHR had not been established for the purpose of performing any list of assignments but for interpretation of the Peace Agreement, which still is effective. The existence of the Dayton Peace Agreement itself asks for existence of the institution for its interpretation. The High Representative could not be removed just like that, surgically, from the Agreement, just for the reason that some practical list of assignments had been cleared. On the contrary, the High Representative is a constituent part of the Peace Agreement, which was established in the aim of securing implementation and interpretation of international mechanisms for peacekeeping in a post-war country. In this sense, one of the most important segments of the Council Resolution 1031 is that this Resolution defines need for implementation of the Peace Agreement but – as a whole. In difference to the 5+2 Agenda, the Peace Implementation Council Steering Board, which considers specific reforms resulting from undertaken international responsibilities (mostly towards the EU and NATO), intention of the Council Resolution 1031 is to ensure implementation of the Peace Agreement itself entirely.

Although complicated situation become even worse when some of the EU member countries, which constantly say that BiH request for membership in the EU cannot be taken into consideration up until the OHR exists. National political elites use this maximally for pointing at the OHR as a guilty party for being an obstacle to European integrations, and to confront decisions and politics coming from it. This is only an example that there are people in the EU who are ready to use the closing of the OHR as political means or negotiating procedure, instead of supporting it as a legal mechanism being a constituent part of the Dayton structure.

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So, closing OHR appears to be a collateral damage of the conflict between two concepts: short-term base expressed through a concept, which is conditioned by time and measured by indicators for closing the OHR, and long-term worry, which, from one side, is based on eve worse political situation, and, on the other side, incorporated in the UN Resolution trying to build persistent peace. The other approach comes out of accepting the fact that the persistent peace still is jeopardized. The first approach neglects the fact that removal of the OHR as a constituent and inseparable part of the legal system in BiH would cause immediate and permanent system blockade. If the Peace Agreement stayed in force without existing of legal authority to interpret it, possibilities for its obstruction would be created in a very short period. Premature closing of the OHR, without previous transfer of functions onto national institutions, would create a legal vacuum that would lead to instability representing bigger threat for the Peace Agreement than any other so-far political threat. And there were many, and are many to come, as it seems. Inversely proportional to the role and political importance of various High Representatives, role and political importance of the Peace Implementation Council grew or decreased. If the High Representative was stronger, the Peace Implementation Council Steering Board would be weaker sticking to its original mandate of providing guidelines to the OHR and vice versa. One cannot but conclude that transformation of the OHR had started when the Peace Implementation Council overtook the role of the High Representative and started to request for consensus of all the members of the Peace Implementation Council Steering Board, instead of transferring these authorities onto a single person. One step after another, it all lead to virtual balance of powers between the OHR and the Peace Implementation Council Steering Board, which damaged credibility of both in the eyes of the national political elites.

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Considering even worse political situation, reforms, which have been performed somehow in previous years, are questioned at the moment. Some of them are denied directly, such case is with BiH Court and Prosecutor’s Office, whereas other institutions are jeopardized by the fact that the situation had gone worse up to the level that it threatens stability of entire project of building the state. In other words, as the OHR became weaker, certain political elites paid less attention to international responsibilities and showed less respect for international representatives. On the other hand, International Community finds it even worse to ignore it all and to hope that at some point of time and somehow everything would be fine. Formula of this magic circle could be as follows: if they insist to close the OHR more and more, there are even more reasons for its existence. In the reference to this, international presence in BiH could still be considered the preventive mechanism, but it would be delusional to expect the EU to face all the challenges by itself even through its strengthened mission and mandate. The International Community in BiH has probably found itself in the most unlikely position since the Dayton Peace Agreement signing. Separating mission and strengthening role of the EU created an illusion that these are used for implementation of transformations and transitions of the OHR. However, there is still a fact that the EU has no powers to implement the Peace Agreement nor this mandate could be transferred onto it formally. At the same time, Russia and Turkey are trying to strengthen their positions in the Peace Implementation Council Steering Board. However, this could be formally ensured up until the Peace Implementation Council exists. The USA send mixed messages with, sometimes, more expressed signs of indecision. On one hand, often visits of the highly positioned officials send a message of constant involvement, whereas, on the other hand, America has not presented its strategy of future action yet, nor it clearly requests the undertaking of the power. Since BiH has not been registered as an American national interest for years now, the Dayton political laboratory is struggling in the chains of the international contract which the USA is the most responsible of. In such a situation, the key role of BiH is played by the EU. Brussels is tasked with helping construction of self-sustainable BiH without dominating role of the USA, and BiH has been designed institutionally the way it is in no position of achieving its sustainability by appeals that changes are possible only if they are wished by national political individuals.

This is the reason the USA, Russia and Turkey, but the EU in the first place, should contemplate over the impossible fact that there has not been any country in Europe where the European Union, as well as the EU, more present than in BiH since 1996 till today. But, BiH just is the country where maximization of the European presence developed minimum of European potentials. Or, even worse: intensity of the Brussels’ presence is inversely proportional to BiH’s fulfilling conditions for the process of joining the EU. And even worse: the only thing the national political individuals do not want to change is the political pattern, which brings nationalism back to life again and again as a power fuel of state bureaucracy  growth  at all levels of making decisions and followers of political ideas that are backed up by a big – nothingness. Meanwhile, compromises are wanted – alive or dead. It is all right as long as they are compromises. Semi- colonial administration of the country performed by foreigners is problematic. They have to keep illusion of sovereignty and democratic choices, which result in unwanted effects now and then and the country is blocked by decision between election will and its citizens and wishes of its international representatives. So much complicated situation is proved by already forgot fact that the Stabilisation and Association Agreement (SSP) ratified all the EU country members with BiH. But, its enforcement will only be possible when a country fulfills necessary conditions to enforce the Agreement without its breaching. In the previous months, it has accidentally called: Steps taken by BiH authorities to implement the Sejdić and Finci judgment made by the European Court of Human Rights, but could be called in any other way.