By Legalizing Republika Srpska's Constitution Dayton Legalized Genocide
Author: Edin Sarcevic - interviewed in Slobodna Bosna
Uploaded: Tuesday, 12 June, 2001
Edin Sarcevic of the University of Leipzig's law faculty discusses ways in which the existing constitutional set-up in post-Dayton B-H is in contradiction with principles of international law
Q. What would be the legal procedure for changing the existing constitutional arrangement in Bosnia-Herzegovina?A. 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 Annex 4. The existing constitutional system should be proclaimed invalid, or replaced by a new B-H constitution whose framework should be formulated outside of B-H. The 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 its own constitutional norms which 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. An 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 the 'constituent nations', citizens and the High Representative.
Q. Your analysis of the Dayton agreement points to a series of systemic legal errors due to which it is impossible to implement it.
A. 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 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, and which can never lead to a legally consolidated structure. During the past six years the conflict between these two principles has been multiplying the original errors, and cannot develop into an integral state-legal system. The abstract B-H citizens do not exist as political subjects. According the reports produced by foreign legal experts, citizens as political subjects form some 8 or 9% of the total population of Bosnia-Herzegovina.
The Dayton Accords pretend to base themselves on the principle of legal state, but this principle is in contradiction with the primacy of the ethnic principle. In the Dayton agreement there is no separation between the ethnic and non-ethnic spheres of interests. There is no constitutional protection of the non-ethnic spheres, such as telecommunications, railways, protection of state borders, external trade: in the sea of legal absurdities characteristic of post-war Bosnia-Herzegovina they have all become transformed into ethnic collective rights. We have Serb, Croat and Bosniak railways, electrical power generation, and privatization processes. Annex 4 of the B-H constitution provides no answers to these absurdities, since the constitution expresses simultaneously the demand for the establishment of a legal state and the legal and political diktat of the ethnos.
Q. Which international legal instruments could be used to annul parts or the whole of the Dayton agreement?
A. 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 or the annulment of the Dayton agreement can be realized only within its framework. It can be annulled only if one signatory country - FRY, Croatia or the Republic of Bosnia-Herzegovina - were to decide that the agreement, in one of its points vital for the existence of Dayton Bosnia, is contrary to its own internal legal rules; or that there was a fallacy in regard to the subject of the agreement; or that one or more state representatives were 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 the 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 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.
Q. 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 Annex 4?
A. There are several ways in which the B-H constitution could be changed. One could do so through the legal institutions created by the Dayton agreement. We have in Bosnia the last European Kaiser in the shape of the authority of the High Representative and his camarilla. We are talking of
imperial prerogatives, in that the HR can bring in laws which the B-H parliament can only confirm, but not contest. The will of the citizens to whom the law applies is also excluded. The Bosnian Kaiser is responsible only to God as represented by the international community.
The Bosnian Kaiser does play a positive role when he tries to remove the inconsistencies of the Dayton agreement by strengthening the civic principle of state legitimacy, like for example the decision by the B-H constitutional court regarding the principle of national legal equality in the country as a whole. 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 the 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.
Q. Whenever one mentions the crime of genocide to the Western diplomats in Sarajevo, one is told that this is being 'emotional'. What is the legal basis for the statement that the RS constitution is intimately linked to the genocide against the Bosniaks?
A. The present-day RS constitution is a formal codification of the wartime legal setup, which was legalized by the Dayton agreement. The basic premise of the RS constitution, as established by the B-H constitutional court with its decision regarding national equality, is that it protects the results of genocide and ethnic cleansing. Speaking as a German legal expert I could cite the decision of the German federal constitutional court which, in its decision of December 2000 whereby it sentenced a Serb to twenty years in prison for genocide, has 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 generals Radislav Krstic and Ratko Mladic for war crimes. 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 alleviate in part by allowing the other constituent nations and the national minorities to share power in RS with the Serbs.
Q. Could the Commission for Protection of the Interests of the Constituent Peoples in RS, which was launched by the International Working Group with Petritsch's support, initiate a process leading to the removal of the results of ethnic cleansing and genocide in RS?
A. The establishment of this commission is one of the many absurdities. This procedure will not bring about harmonization of the entities' constitutions at the level of B-H. No amount of legal fantasies can make it equal in status to the parliamentary body which in the Federation is called the Chamber of Peoples, and which does not exist in RS. The Commission is meant to help implement the decision of the B-H constitutional court regarding national equality, which is quite absurd. The only rational way forward is to redraft the RS constitution by establishing there a second Chamber, which would safeguard the equality of the constituent peoples. In doing what he is doing, the HR is in fact undermining the will and intention of the B-H constitutional court.
Q. Some Federation politicians and some Americans believe that banning the SDS would open the path for revision of the Dayton agreement.
A. This is no solution. The banning of a party cannot remove the political mentality which rules in RS. Taken as a whole, RS is today united around the idea that it is the state of the Serb people and that everything is allowed in the defence of its existence. This is the context which allows us to situate the establishment of concentration camps, mass murder and deportation of Bosniaks and Croats as well as the recent events in Trebinje and Banja Luka. The brutal crimes and violence are a consequence of the internal consensus embracing the greater part of the Serb ethnic body. A ban on SDS would not suspend the mentality projected by other parties whose names carry the prefix 'Serb'.
Q. Is there a solution for the problem of implementing the Dayton agreement in Republika Srpska?
A. The Dayton agreement in its key provisions - the return of the refugees and the removal of the results of ethnic cleansing and fascistic nationalist programmes - has proved impotent. After six years of its existence it has become a basis for legalizing genocide and a stimulus for further ambitions aimed at killing policies favouring the social integration of Bosnia-Herzegovina. This is why a climate that would permit the implementation of the Dayton agreement could be created in RS in only two ways: by force or by a long-term denazification of the Serb corpus in B-H and FRY. The replacement of officials by OSCE or OHR, or appeals to and evocation of democratic norms, make no sense. I favour denazification through confrontation with and education of the Serb intellectual, religious, military and political elites, in relation to the results of ethnic cleansing and genocide. Srebrenica and Keraterm should become places for the education of young Serb generations concerning the criminal aspects of recent Serb history, not Bosniak memorial centres. 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 denazification of Serb society is also necessary for combating 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.
Q. What is the potential of the Law on Truth and Reconciliation and of the related Commission?
A. This is a policy of sweeping 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.
Q. The leaders of the Alliance for Change are trying to improve the situation by global political activity focussed 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.
A. One has 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, other than some formal aid to its institutions. How can Bosnia join Europe when it is easier in it to stone a neighbour than it is to gain permission to shoot a mad dog in Germany.
Q. Do you see among your Bosnian colleagues people capable of creating normal legal institutions in B-H by working through the existing institutions?
A. There are some good young people studying at the departments of law. They are not to be found, however, in the offices of the High Representative, by contrast with those whose only quality is ethnic membership. There you just have highly paid poor legal experts and good demagogues. Those who have the patience to read the separate statements of the judges of the Constitutional Court will note a low level of legal literacy. The judges act here not as guardians of 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 is also a prisoner of the Dayton system and will meet its fate within the ambit of the Dayton agreement.
Q. By accident 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?
A. Mladen Ivanic's economic ideas are in contradiction with the policy which he advocates as a politician. The policy which his government is pursuing is a continuation of the Great Serb policy previously pursued by Radovan Karadzic. Regardless of what he himself thinks of the Great Serb policy, the government which 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 B-H. Mladen Ivanic, after all, neither during nor after the war has ever publicly denounced the killing and deportation of his neighbours from Sanski Most or of the non-Serbs from RS.
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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 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 Ezan in German Constitutional Law. He is at present writing a book on whether the establishment of a state's constitution can be realized by way of international law. He is known as a consistent critic of the Dayton Peace Accords and a supporter of the annulment of the Bosnia-Herzegovina's constitution based on Annex 4.
This interview has been translated from Slobodna Bosna (Sarajevo), 24 May 2001
source: http://www.bosnia.org.uk/news/news_body.cfm?newsid=1534
