Dayton Legalized genocide
by Edin Sarcevic - interviewed in Slobodna Bosna
What would be the legal procedure for changing the existing constitutional arrangement in Bosnia-Herzegovina?
The Dayton Peace Accord cannot be changed by altering only one part of it. From the point of view of legal science, most of it would have to be annulled, especially Annexe 4. The existing constitutional system should be proclaimed invalid, or replaced by a new B-H constitution whose framework should be formulated outside the country. This framework could be established by consensus within the international community, or a new one could be proposed by any country in the world by reference to constitutional norms of its own that have proved effective in similar circumstances. For example, German legal theory can provide valid proposals, given its experience with Nazism and the annulment of the results of the Nazi period. Agreement regarding the content of a new B-H constitution would have to be reached within B-H, however: it would have to be an agreement between ‘constituent nations’, citizens and the High Representative.
Your analysis of the Dayton agreement points to a series of systemic legal errors thanks to which it is impossible to implement it.
Dayton Bosnia-Herzegovina is based on the premise that it is possible to harmonize extreme nationalism and the civic principle of the legal state. The experience of Dayton Bosnia-Herzegovina proves that it is possible to transform the crime of genocide into a fundamental principle of state and legal order, as is shown by the existence of Republika Srpska. In other words, the Dayton agreement is internally contradictory from the legal point of view. We have a state created by agreement between three ethnic communities organized into two entities, where ethnic communities and entities alike are in latent conflict. Over the past six years this conflict has been multiplying the original errors; any development towards an integral state-legal system is impossible. Abstract B-H citizens are uninvolved in the conflict, since they do not exist as political subjects. According to reports produced by foreign legal experts, citizens comprise just 7 or 8% of the total population of Bosnia-Herzegovina.
After all this, the Dayton Accords absurdly invoke the principles of a legal state. The principle of a legal state, however, is incompatible with primacy of the ethnic principle. In the Dayton agreement there is no separation between national-ideological and non-ethnic spheres of interest. There is no constitutional protection for non-ethnic spheres - such as telecommunications, railways, protection of state borders, external trade - which in the sea of legal absurdities characteristic of post-war Bosnia-Herzegovina have all become transformed into aspects of ethnic collective rights. We have Serb, Croat and Bosniak railways, electric power, and privatization processes. Annexe 4 of the B-H constitution provides no answers to these absurdities, since the constitution expresses simultaneously the demand for establishment of a legal state and the legal and political diktat of the ethnos.
Which international legal instruments could be used to annul parts or the whole of the Dayton agreement?
The Dayton agreement is an international agreement. The B-H constitutional court has established that the Vienna Convention of 1980 applies to it, which means that changes to, or annulment of, the Dayton agreement can be realized only within its own framework. It can be annulled only if one signatory country - FRY, Croatia or the Republic of Bosnia-Herzegovina - were to decide that the agreement had violated some internal legal provision vital for the existence of Dayton Bosnia; or that there had been a fallacy regarding the subject of the agreement; or that one or more state representatives had been acting under coercion or had been bribed or cheated. The case would then be heard by the International Court of Justice in The Hague, which is at present dealing with the B-H charge of genocide against FRY. In my view there are many grounds for initiating the procedure for annulment of the agreement. But the B-H state, due to its internal arrangement and the political madness which characterizes the politicians and officials of the ‘constituent nations’, is not in any position to take a decision in this regard. The political elites in Croatia and FRY have profited from the Dayton agreement at Bosnia's expense, and have no reason for abolishing it.
The legal and political circles of RS do not wish to talk of change, since in their view Dayton has 'given the Serbs a Serb state'. Can you envisage a possibility of agreement between RS and the Federation regarding the revision or annulment of Annexe 4?
There are several ways in which the B-H constitution could be changed. It could be done through the legal institutions created by the Dayton Accords. We have in Bosnia the last European emperor, in the shape of the authority of the High Representative and his camarilla. We are talking of imperial prerogatives, in that the HR can introduce laws that the B-H parliament can only confirm, but not contest. The will of the citizens to whom the law applies is also excluded. The emperor of Bosnia is responsible only to God as represented by the international community. The emperor of Bosnia may play a positive role, if he tries to remove inconsistencies of the Dayton agreement and strengthen the civic principle of legal statehood. A basis for actions of this kind was furnished by the decision of the B-H constitutional court that the country’s peoples have ‘constituent’ status throughout its territory. There are many cases, however, which indicate that the international community is not willing to rectify the mistakes of Dayton. This is visible in their persistent postponement of the necessary changes in the RS constitution, which they have covered up by creating a ‘Commission for Protection of the National Interests of the Constituent Peoples’ (CPNICP), instead of trying to revise the RS constitution by bringing it into conformity with the institutional norms of the Federation. The RS constitution is the legal heir of the illegal set-up created in 1992, which provided the framework for conducting genocide against the Bosniaks.
Whenever one mentions the crime of genocide to Western diplomats in Sarajevo, one is told that one is being 'emotional'. What is the legal basis for the statement that the RS constitution is intimately linked to the genocide against the Bosniaks?
The present-day RS constitution is simply a codification of the wartime legal setup, which was then legitimized by the Dayton agreement. The basic premise of the RS constitution, as was recognized by the B-H constitutional court with its decision on constituent status, is that it protects the results of genocide and ethnic cleansing. Speaking in the guise of a German legal expert, I could cite a decision by the German federal constitutional court, which in December 2000, when sentencing a Serb to twenty years in prison for genocide, established that ethnic cleansing is a legal component of the act of genocide. The International War Crimes Tribunal in The Hague has brought charges of genocide against Radovan Karadzic and against Generals Radislav Krstic and Ratko Mladic. In this way a logical, political and legal tie has been established between RS and genocide. RS is a product of genocide: those who wish to dispute this should come up with legally valid arguments. The result of genocide can be alleviated in part by allowing the other constituent nations and the national minorities to share power in RS with the Serbs.
Could the Commission for Protection of the National Interests of the Constituent Peoples in RS, which was launched by the International Working Group with Petritsch's support, initiate a process leading to elimination of the results of ethnic cleansing and genocide in RS?
The establishment of this Commission is a fresh absurdity. This approach will not bring about harmonization of the entity constitutions at the level of B-H. No amount of legal fantasies can make it equal in status to the parliamentary body that in the Federation is called the Chamber of Peoples - and that does not exist in RS. The Commission is meant to help implement the decision on constituent status of the B-H constitutional court, which is ludicrous. The only rational way forward is to redraft the RS constitution by establishing a second Chamber there: one body would safeguard the constituent peoples, the other all B-H citizens. In doing what he is doing, the HR is in fact undermining the will and intention of the B-H constitutional court.
Some Federation politicians and some Americans believe that banning the SDS would open the path for revision of the Dayton agreement.
That would be no solution. Banning a party could not remove the political mentality prevailing in RS. Taken as a whole, RS today is united around the idea that it is the state of the Serb people, and that everything is permitted in defence of its existence. This is the context that allows us to situate the establishment of concentration camps, the mass murder and deportation of Bosniaks and Croats, and also the recent events in Trebinje and Banja Luka. Brutal crimes and violence are the result of an internal consensus embracing the greater part of the Serb ethnic body. A ban on the SDS would not eliminate the mentality projected also by all the other parties whose names carry the prefix 'Serb'.
Is there a solution for the problem of implementing the Dayton agreement in Republika Srpska?
The Dayton agreement in its key provisions - the return of refugees, and elimination of the results of ethnic cleansing and fascistic nationalist programmes - has proved impotent. After six years of existence it has become a basis for legalizing genocide, while encouraging fresh attempts to kill ideas, policies and rights favouring the integration of a pluri-national Bosnia-Herzegovina. This is why a climate permitting implementation of the Dayton agreement could be created in RS in only two ways: by force, or by long-term de-nazification of the Serb corpus in B-H and FRY. The replacement of officials by OSCE or OHR, or appeals to and invocation of democratic norms, make no sense. I favour de-nazification through confrontation with - and education of - the Serb intellectual, religious, military and political elites, in relation to the results of ethnic cleansing and genocide. Rather than Bosniak memorial centres, Srebrenica and Keraterm should become places where young Serb generations could be educated concerning the criminal aspects of recent Serb history. The new generations of Bosnian Serbs who would be able to confront Serb crimes and their results would provide a real force also for implementation of the Dayton Accords. The process of de-nazification of Serb society is necessary also in order to combat extremist religious and political leaders among the Croats and Bosniaks: those who support the idea of ethnically pure territories and a final division of Bosnia-Herzegovina.
What might be the potential of a Law on Truth and Reconciliation, with a related Commission?
This is a policy of sweeping things under the carpet and preventing the peoples of Bosnia-Herzegovina from facing up to their crimes. It means leaving the Serb people in the conviction that killings, deportations and the destruction of other people's heritage and values are a patriotic duty and heroism.
The leaders of the Alliance for Change are trying to improve the situation by a programme of political activity focused on integration into the Council of Europe and the European Union. Sead Avdic, one of the SDP leaders, has recently stated that the violence witnessed in Trebinje and Banja Luka would not have happened if B-H had been a member of the Council of Europe.
One would have to be politically and legally blind not to see that B-H is a completely archaic society in comparison to Europe. European standards are completely alien to us. Europe is not interested in Bosnia. The mentality nurtured by the Bosnian peoples has no place in Europe. Europe needs stability and peace in B-H for its own sake, not for the sake of the Bosnian peoples. This is why Europe is happy with the Dayton agreement, which means that it need not be too bothered with the country and its neighbours, apart from some formal aid to its institutions. How can Bosnia join Europe, when it is easier to stone a neighbour there than it is to get permission to shoot a mad dog in Germany.
Among your Bosnian colleagues do you see people capable of creating normal legal institutions in B-H by working through the existing institutions?
There are some good young people studying in the departments of law. They are not to be found, however, in the offices of the High Representative - unlike people whose only qualification is their ethnicity. There you just have highly paid poor legal experts and good demagogues. Those who have the patience to read the separate opinions on constituent status of the Constitutional Court judges will note the low level of legal literacy. Judges here act not as guardians of the law but as guardians of the ethnos. The legal expert is first of all a nationalist whose competence is measured by his ability to violate legal logic and constitutional standards. The Alliance for Change too is a prisoner of the Dayton system, and will meet its fate within the ambit of the Dayton agreement.
By coincidence you were born and grew up in the same street in Sanski Most as Mladen Ivanic, the current prime minister of RS. Does your knowledge of him help you to understand which way his policy is going?
Mladen Ivanic's economic ideas are in contradiction with the policy he advocates as a politician. The policy that his government is pursuing is a continuation of the Greater Serbian policy previously pursued by Radovan Karadzic. Regardless of what he himself thinks of the Greater Serbian policy, the government he heads has stated that the recent elections were won by patriotic forces, by which it means the SDS; and that the principle of ‘one man, one vote’ is inappropriate for Bosnia-Herzegovina. Mladen Ivanic, after all, neither during nor since the war has ever publicly denounced the killing and deportation of his neighbours from Sanski Most, or of non-Serbs from Republika Srpska.
Edin Sarcevic teaches at the law faculty of the University of Leipzig. He was born in Sanski Most and studied law at the universities of Sarajevo and Belgrade. He gained a Ph.D. from the University of Saarbrucken on the subject of the legal state. His dissertation was proclaimed the best work on the subject in Saarland and won him a state prize. He became assistant lecturer in the department of public law of the University of Leipzig, where he teaches four subjects including the philosophy of law. He has published four books in German: The Legal State; The Federal State - a Principle; The Final Phase of Constitutional Life in Bosnia-Herzegovina; and Religious Freedom and the Muezzin’s Call in German Constitutional Law. He is currently writing a book on whether the establishment of a state's constitution can be effected through international law. He is known as a consistent critic of the Dayton Peace Accords, and advocate of the annulment of the B-H constitution based on Annexe 4 of the Accords. This interview has been translated from Slobodna Bosna (Sarajevo), 24 May 2001