A Critical Appraisal of Human Rights Provisions of the Dayton Constitution of Bosnia and Herzegovina

I. Global Implications of the Dayton Agreement

The General Framework Agreement for Peace in Bosnia and Herzegovina, which was initialled in Dayton on 21 November 1995 and signed in Paris on 14 December of the same year, provided a comprehensive initial framework for ending the war, and indeed so far secured peace in the country. ¹ However, very serious obstacles to a durable constitutional settlement and to the establishment of the rule of law still exist. Both of these are crucial for the implementation of the human rights provisions that were stipulated for in the Constitution of Bosnia and Herzegovina ² and in the Agreement on Human Rights. ³

Before turning to those obstacles, let me express my concern and skepticism related to the foundations of the Dayton Agreement and the current peace. High political prices have been paid for the brand of peace achieved in Dayton, setting two far-reaching precedents. First, the Dayton Agreement sends the wrong message to warlords worldwide by implicitly legitimizing the gains of sectarian violence that often amount to the commission of war crimes and crimes against humanity. ⁴ Second, the Dayton Agreement marginalizes the United Nations in favor of NATO as the central mechanism for international conflict resolution. ⁵ Arguably, regional organizations like NATO, OAU and OAS (rather than the United Nations) are, in principle, preferable for handling conflict situations within their regions. However, of the three major international players during the Bosnian war (the European Union, the United Nations, and NATO), Bosnia and Herzegovina was only a member state of the United Nations. Given the long tradition and fruitful membership of the Former Yugoslavia in the United Nations, the United Nations was perceived as the most logical instrument of the international community to deal with the crisis. Other institutions were seen, for better or for worse, as foreign and more interventionist, at least until it became clear that the UN Protection Force (UNPROFOR) was running into failure. ⁶

At the same time, it should be pointed out that the Dayton Agreement implicitly puts Bosnia and Herzegovina under the protectorate of the international community. While rather controversial, this label sounds more acceptable than the label of trusteeship. ⁷ Leaving aside political sensitivities regarding the definition of the Dayton institutional structure in Bosnia and Herzegovina, the following illustrates my argument about the protectorate. First and foremost, the Office of the High Representative (OHR), based in Sarajevo, acts as the steering power on behalf of the international community. ⁸ The OHR is instructed “to facilitate the Parties’ own efforts and to mobilize and, as appropriate, coordinate the activities of the organizations and agencies involved in the civilian aspects of the peace settlement.” ⁹ The Constitutional Court of Bosnia and Herzegovina is composed of nine members, three of whom are foreign nationals appointed by the President of the European Court of Human Rights. ¹⁰ A foreigner, appointed by the International Monetary Fund, serves as the Governor of the Central Bank. ¹¹ The Organization for Security and Cooperation in Europe (OSCE) appoints the Human Rights Ombudsman. ¹² The Human Rights Chamber will have a majority of foreign members (eight out of fourteen), who are appointed by the Council of Europe. ¹³ Finally, in terms of manpower, heavy armory, and the extent of the mandate, the international armed force deployed in Bosnia and Herzegovina is without precedent. ¹⁴

Thus, in regards to the process of implementation, the politicians downplayed the respective roles of the United Nations, the OSCE, the Council of Europe, and other international organizations, both in coordination with NATO and alone. These roles, never fully acknowledged, are much larger and involve more responsibility than what the world political leaders presented to the general public. In a country where the blood on the ground is still very fresh, where half of the population does not reside where it did in 1991, ¹⁵ where hate burns and territorial-ethnic entrenchment overwhelms any eventual new political thinking, people miraculously expect nation building, democratic elections, and the rule of law to occur within months. This is...