CONTINUOUS INTERNATIONAL INTERVENTION AS A SUBSTITUTE FOR DOMESTIC LEGITIMACY?
Five years after the war ended, it seemed possible that the nationalist ethnic parties, democratically elected in frequent elections, would reach in the Entities the objectives they had been striving for during the war, employing strategies of discrimination rather than military violence.
With this prospect in view, no meaningful co-operation took place at the State level, and whatever progress occurred was the result of international intervention.During the first years after the war, the International Community directly guaranteed security (through NATO’s contingent military Stabilisation Force, or SFOR) and stability through special international bodies, such as the Electoral Commission and the International Police Task Force.33 Interestingly, for key institutions in the reconstruction, a softer and more durable way was chosen with a “mixed” composition of international and domestic members: in the Human Rights Chamber, the Constitutional Court, and the Commission for Real Property Claims of Displaced Persons and Refugees (CRPC), two-thirds of the decision makers are domestic members and one-third are international members. According to the pattern of parity, two-thirds of the domestic members are nominated by the FBH and one-third by the RS.34 But the direct or indirect involvement of the International Community inevitably increased institutional complexity.
Human rights protection may serve as an instructive example. As set out in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its protocols, human rights have priority over all other law. Special emphasis is placed on the rights of refugees and displaced persons to return to their places of origin and on the related right of the restoration of property lost because of the war (article II.2 and article II.5). Human rights protection is thus directly linked to international standards and principles and constitutes an important source of legitimacy for international intervention and interference.
However, numerous bodies on the State level deal with the protection of human rights in general or in specific cases, such as with property rights, and the same is true at the level of the Entities. In the three constitutions ten different organs have been expressly charged with dealing with human rights violations.35 But instead of ensuring effective protection of the rights of individuals, this institutional proliferation has created confusion about which remedy to use and has prolonged the process of reaching a final and binding decision, not to mention the difficulties of enforcing such a decision in an often hostile environment. It has also raised the question of which institution has the final say.36From the Dayton negotiations onwards, the International Community has tried to maintain equal distance from all parties in order that it might be recognized by all as a neutral intermediary.37 In particular, the question of responsibility for war and ethnic violence has never been addressed other than in terms of individual responsibility, with the prosecution for war crimes through extradition to the International Criminal Tribunal for Yugoslavia or through processes of vetting and lustration for members of the security forces and the judiciary.38 Yet over time it became clear that in order to preserve the unity of the State and promote efficiency in institutions and services, the creation of two “de facto States” had to be halted and the process of nation-building within the Entities had to be contained while State structures were being strengthened. The main dilemma was how to make the institutions function and how to guarantee the rights of minorities and the multinational character of the country. The IC responded by assisting and supervising institution building at all levels and by trying to promote and foster democracy, human rights, and the rule of law,39 while at the same time emphasizing efficiency, i.e., technical governance instead of political government.40
The key institution of the International Community in Bosnia is the High Representative, which is responsible for the coordination of all activities related to the civilian implementation of the DPA and is also the highest authority regarding the interpretation of the agreement.41 These functions have provided the basis for an extension of the mandate by the Peace Implementation Council (PIC)42 in order to overcome the obstructionist behaviour of local politicians regarding the full implementation of the DPA.
The “Bonn Powers” enable the High Representative to unilaterally impose legislation and administrative provisions, as well as to dismiss public officials and politicians who have impeded progress in the implementation process.43 With these extraordinary powers of substitution and direct interference, the High Representative’s role has changed from that of a supervisor of the peace implementation process to its main actor. Making use of these far-reaching powers, the High Representative could do – and actually did – what Bosnian politicians were not willing to do or even tried to block by the use of their veto powers. Between 1998 and 2005, in the period of frequent use of the extraordinary powers, 757 decisions altogether have been adopted by the High Representative. Of these, 119 regarded the removal of non-cooperative persons and 286 the imposition of laws or the amendment of laws. In fact, all major laws have been adopted as unilateral decrees by the High Representative, for example, laws reforming the judicial system, laws on citizenship, laws establishing the symbols and flag of the State, laws concerning passports and ID cards, laws regulating licence plates, and so on.44Despite its success in passing the necessary legislation and dismissing obstructive officials, this “international protectorate” has not significantly reduced the role of the nationalist parties. Rather, it has further weakened the institutional structures based on power sharing, since the probability of the imposition of decisions has relieved the institutional representatives of the need to negotiate and compromise. As a result, the Office of the High Representative (OHR) became a superimposed layer of government without being accountable within the institutional system and subject merely to political control of the Peace Implementation Council.45 However, given the political situation and the continued strength of nationalist political parties, less international intervention would probably have left legitimate national and minority rights unprotected in the face of unacceptable nationalist demands.