Re-writing History

BiH has a lot of history, and a lot of different versions of it.  But it’s worrying to see how the histories of war and of peace are being re-written to promote the political agendas of different groups.  The newspapers are full of arguments about the past.  Much less attention is paid to the future.  And those of us who want to concentrate on fixing the real problems facing ordinary people in BiH today – unemployment, inequality and corruption – are constantly dragged into pointless debates and artificial crises.  Divisions over the past are used to distract from the reforms and modernisation which politicians see as a threat to their present control over access to jobs, money and patronage.  It’s frustrating.

Re-writing war

Quite a lot of recent revisionism is focused on the Second World War.  This isn’t exclusive to BiH.  It’s happening around the region.  But here we have seen attempts to rehabilitate the reputation of characters like Ante Pavelić or Draža Mihailović, and just a few weeks ago a school in Sarajevo was named after an anti-semitic Nazi sympathiser, Mustafa Busuladžić.

Perhaps even more disturbing is the celebration of those convicted of more recent crimes.  I remember particularly the hero’s welcome for Dario Kordić in 2014 after his release from prison for crimes against humanity.  And not only has a student dormitory in Pale been named after Radovan Karadžić but, in October, he was publicly honoured by the RS National Assembly.

Why does this matter?

It matters because the first step towards reconciliation is to learn lessons for the future from the tragedies of the past.  That requires first an acceptance of the crimes that were committed, and a commitment not to let them happen again.

It matters because, in Annex 7 of the Dayton Peace Agreement, the State and Entity-level governments committed themselves to creating “political, economic, and social conditions conducive to the voluntary return and harmonious reintegration of refugees and displaced persons.”  Celebrating those who committed war crimes against people of different ethnicities, and drove them from their homes, is a clear violation of this commitment.

And it matters on a very human level.  The war of the 1990s brought nothing but suffering to the vast majority of people in this country.  Many of its victims are still alive.  Today, the deliberate provocations, the divisive rhetoric, the historical revisionism – all of this brings back old fears, and keeps BiH from moving forwards.

Re-writing peace

That’s bad enough.  But the rewriting of history doesn’t stop at glossing over war crimes.  There are growing challenges to the key structures and institutions established under the Dayton Peace Agreement.  Ironically, these challenges often come from those who insist most strongly on sticking to the “letter” of Dayton.  To paraphrase the Anglo-Irish statesman, Edmund Burke, “It is a general popular error to imagine the loudest defenders of Dayton deem to be the most anxious for its preservation.”

Challenges to Dayton come in different forms.  I have seen Bosniak efforts to deny or ignore the constitutional authorities of Republika Srpska.  I have seen Serb attempts to weaken and degrade the constitutional authorities of the State of BiH.  And I have seen Croat attempts to challenge and frustrate decision-making at the level of the Federation entity.

None of this helps BiH to progress.  That’s why, when we launched the new international approach to BiH in 2014, we said that will work within the existing institutional framework if others are prepared to do so as well.  It’s perfectly legitimate for Republika Srpska, or for the cantons, to decide on issues for which they are constitutionally responsible.  But, if the system is to work, then they have to offer the same respect for the authority of others as they demand for themselves.

That approach was enshrined in the agreement on the Coordination Mechanism.  It reflects some of the key principles in the Dayton agreement: the sovereignty of the state and the devolution of many responsibilities to the entity and cantonal levels.  It also reflects a preference for consensus-based decision-making between the three constituent peoples and the different levels of government, and respect for the rule of law.

I had hoped that this decision on the Coordination Mechanism could herald a more consensual era of politics in BiH.  I still hope so.  But, for now at least, crises and challenges continue.  Too many leaders persist in treating the Constitution as an à la carte menu, accepting the parts that they like and ignoring those they don’t.

The most obvious, and the most serious, challenge to Dayton, and to the rule of law, was September’s referendum in Republika Srpska.

The UK fully supports the right of the RS to exist, as an essential and integral part of BiH, and we support the right to mark that existence with a public holiday.  We support too the right of the RS to hold referendums on issues that fall within its constitutional competence, and within the framework of the BiH Constitution.  But the BiH Constitutional Court decided that the choice of 9 January for RS Day was discriminatory, and it banned the referendum from going ahead.  And still it was held.

As a member of the Peace Implementation Council, our primary concern is not with the issue of a holiday, but with upholding the BiH Constitution and the authority of the Constitutional Court.  Frankly, I would have preferred if this issue hadn’t been raised in the first place, when there are so many other, more important issues to focus on.  But it was raised, and the Court gave its decisions.

The Constitutional Court of BiH is arguably the most important of the Dayton institutions.  Under the Peace Agreement, it is the only Court with the authority to decide on constitutional disputes between different levels of government, and its decisions are “final and binding”.  In its refusal to accept the Court’s decisions, the RS Government and the National Assembly have exceeded their authority, and sought to exercise competences beyond their constitutional rights – in other words, they have done precisely what they accuse others of doing.

It’s not only the Constitutional Court that has been challenged.  The Court of BiH has also been in the firing line, with accusations that it is somehow illegitimate because it wasn’t part of the “original Dayton”.  But the “original Dayton” specifies that the State has a responsibility, amongst other things, for “international and inter-entity criminal law enforcement”, and “to preserve the sovereignty, territorial integrity, political independence, and international personality of Bosnia and Herzegovina”.  It also states clearly that “additional institutions may be established as necessary to carry out such responsibilities.”

It was on these grounds that, following a decision by the High Representative, the Court of BiH was established on 3 July 2002 by a vote in the Parliament of Bosnia and Herzegovina.  Given recent public statements, it’s important to note that SNSD representatives voted in support of the law, and that the entity veto mechanism was not invoked by RS delegates.  The establishment of the Court of BiH was signed into law by Mariofil Ljubić and Dr Nikola Špirić.  The process was very similar for establishing the State Prosecutor’s Office on 29 October 2003, which Dr Špirić again signed into law.  These were legally binding decisions, confirmed by the Constitutional Court of BiH, and any changes must follow due process in line with established constitutional procedures.

The key to security and stability in Bosnia and Herzegovina remains the essential formula set out in the Dayton Peace Agreement, that BiH remains a single, sovereign country comprising two entities.

There are two important points here.  The first is that there are two entities.  Not one, and not three.  As members of the Peace Implementation Council, we are as committed to preserving the rights and responsibilities of these two entities – Republika Srpska and the Federation of BiH – as we are to the State itself.  Any changes to this model can in practice only be made with the consent of BiH’s three constituent peoples.

The second point is that the Constitution determined that sovereignty in BiH rests exclusively with the State level.  BiH is not a voluntary confederation in which entities have the right to secede.   They don’t.  Entities only exist legally by virtue of the Constitution, as integral parts of BiH.  It is therefore legally incorrect to argue that the entities, or any of their institutions or decisions, pre-date the Dayton Peace Agreement in 1995.

Sadly, far too much political space in BiH today is consumed by these attempts at legal and historical revisionism.  What’s worse is that all of this is designed to distract from the failure to address the huge social and economic challenges facing BiH.  And while politicians argue, young people are leaving this country in their thousands, and taking their talent, their optimism and their ambition with them.  As we look ahead to 2017, a rare, election-free year, my New Year’s wish is to see less time, energy and money spent on lawyers and historians, and much, much more on economists and entrepreneurs.