Sources and Documents

Abstract

Sources and Documents Obrad Kesić Introduction Since the early days of the Dayton Peace Agreement, central issues of dispute have been the authority and powers granted to the two entities (the Republika Srpska and the Bosniak-Croat Federation). Bosniak and Croat politicians and many international politicians and diplomats hold a view that the Dayton Constitution gave the entities too many powers and that this has led to political paralysis, and an inefficient state structure. As a result, the High Representative through the "Bonn Powers" has sought for many years to "correct" this perceived Dayton flaw that has led to the forced or coerced transfer of approximately 68 powers from the entities to the joint state institutions. The government and citizens of the Republika Srpska have seen this as an illegal usurpation of powers and have come to fear that the underlying motive for this has in fact been a desire to create a centralized Bosnia state which would be dominated by state institutions controlled by Bosniaks in Sarajevo. This issue came to a head in 2009-10, when the Republika Srpska Government, with the assistance of American international lawyers, directly challenged the High Representative's use of the Bonn powers, refused to implement his decisions, and moved to re-examine many of the previous decisions made by previous High Representatives. The confrontation has significant implications for future constitutional negotiations within Bosnia and for the international protectorate which has administered the state since 1996. The Republika Srpska government has moved to organize a referendum which would directly involve its citizens in the struggle with the High Representative. The following documents show the basic positions of the two sides of this confrontation and vividly show the significance of the gap that leaves little room for a compromise. [End Page 275] Statement of the Office of the High Representative RS Referendum on Dayton Risks Going Beyond Rule of Law The planned referendum proposed by the SNSD-led RS Government to question elements of the General Framework Agreement for Peace (GFAP, also known as the Dayton Peace Agreement) falls outside the scope of the entity's constitutional competencies, is contrary to its obligations under the constitution of Bosnia and Herzegovina, and, as the High Representative has already made clear, is a violation of the GFAP. The SNSD-led Republika Srpska Government is obliged to respect the Dayton Peace Agreement in its entirety and not challenge actions undertaken on the basis of Dayton and UN Security Council Resolutions adopted under Chapter VII of the United Nations Charter. The SNSD-led government should therefore cease from endangering BiH's international obligations and commitments. By organizing a referendum on these issues, the SNSD is manipulating RS voters to divert attention from the real economic problems facing citizens. Such actions are in defiance of the rule of law and endanger the reputation of the Republika Srpska. During his last visit to Banja Luka the High Representative was clear that "[r]ejection of the most basic principles of the Dayton Peace Agreement as well as standards of international law, means the SNSD is setting the RS on the dangerous path of legal uncertainty." Conclusions and public statements that negate the constitutional order of the country and the legal framework regulating BiH judicial institutions, question cooperation with the ICTY, and deny facts about war crimes proven beyond a reasonable doubt in a court of law, all fly in the face of the rule of law. By resolution of the UN Security Council, all countries are obliged to cooperate with the ICTY, especially Dayton signatories. Article IX on the very first page of the Dayton Agreement obliges the Parties to Dayton to "cooperate fully with all entities involved in implementation of this peace settlement, as described in the Annexes to this Agreement, or which are otherwise authorized by the United Nations Security Council, pursuant to the obligation [End Page 276] of all Parties to cooperate in the investigation and prosecution of war crimes and other violations of international humanitarian law." The Steering Board of the Peace Implementation Council has repeatedly underlined that the International Community retains the necessary instruments to counter destructive tendencies and that it will not allow attempts to...