New York, 24 May 2010
Statement by H.E. Dr Haris Silajdzic, Chairman of the Presidency of Bosnia and Herzegovina
at the UN Security Council Debate
on the situation in Bosnia and Herzegovina
I wish to thank you, Mr. President, and to congratulate you on acceding to the presidency of the Security Council.
It was 18 years ago almost to the day that Bosnia and Herzegovina became a Member of the United Nations. In these 18 years, Bosnia and Herzegovina has travelled the difficult road from being a country that suffered the worst atrocities and civilian plight in Europe since the Second World War to being a non-permanent member of the Security Council and an active participant in the peacebuilding efforts of the international community. As a grim reminder of Bosnia and Herzegovina’s recent pest, this July we will solemnly mark the fifteenth anniversary of the
We have made progress in strengthening and advancing relations with our neighbouring countries Croatia, Montenegro and Serbia, contributing in that way to regional cooperation as one of the major prerequisites for lasting peace and stability in the region. Bosnia and Herzegovina has also made continued progress in meeting conditions for Euro-Atlantic integration. At their meeting held on 22 and 23 April in Tallinn, NATO foreign ministers granted the Membership Action Plan to Bosnia and Herzegovina. Accession to the Membership Action Plan is recognition of the progress achieved and a strong stimulus for an even greater commitment to Euro-Atlantic integration. Bosnia and Herzegovina has also met all the conditions required for visa liberalization with the European Union.
Even though Bosnia and Herzegovina has undoubtedly achieved significant progress, I have come here today to tell the Council that the Dayton Peace Agreement has not been implemented in its central parts. I will go into some detail on this subject, and I ask Council members to bear with me in those details.
The Dayton Peace Agreement has been continuously adjusted to the “realities on the ground”, which have resulted from the systematic violations of the Agreement, and not the other way around. This is demonstrated by the fact that the report the High Representative has submitted here today (S/2010/235) is the thirty-seventh of its kind.
Most of the problems and challenges that Bosnia and Herzegovina faces today stem from the failure to implement the central elements of the Dayton Peace Agreement, particularly its annex 7, which guarantees the right of all refugees and displaced persons freely to return to their homes of origin in safety — a right confirmed by this Council’s resolutions. As a result of the systematic and continuous violations of annex 7, out of some 46 per cent of non-Serbs who lived in Republika Srpska — an entity of Bosnia and Herzegovina — before they were either killed or cleansed, only 8 per cent live there now.
The failure to implement annex 7 has resulted in the most serious constitutional problem facing Bosnia and Herzegovina today. The so-called entity voting mechanism, which was intended as a safeguard for the legitimate territorial interests of the two entities as perceived by all three constituent peoples, has morphed into a mechanism by which one ethnic group from one entity blocks the State without any input from the other constituent peoples.
And this mechanism continues to be used as if annex 7 had been fully implemented. The entity voting mechanism allows only 10 Serb deputies elected from the Republika Srpska entity -who constitute only 22 per cent of Parliament’s 42 deputies - to block any proposed decision of the Parliament of Bosnia and Herzegovina. Over the past 13 years, these 10 deputies have used entity voting to block over 260 proposed laws. In contrast, Parliament enacted less than 150 laws in the same period. This ethnic monopoly on territorial interests solidifies ethnic division, renders the State dysfunctional and in turn perpetuates instability.
Certainly, the views expressed here are not shared by all political actors in Bosnia and Herzegovina, but the United States Congress, the European Commission, the European Parliament, the Council of Europe and the Venice Commission have all rightly identified entity voting as the main obstacle to the efforts to transform Bosnia and Herzegovina into a viable and self-sustainable country, capable of functioning in the absence of the Office of the High Representative. All of these institutions have recommended that entity voting be either eliminated or reformed, and all of their recommendations have so far been ignored.
The second fundamental problem — the question of State property — stems from the fact that the rights given to the State of Bosnia and Herzegovina through Annex 4, which is the Constitution of Bosnia and Herzegovina, have been set aside in favour of political compromises necessitated by the so-called realities on the ground.
Under article I of the Dayton Constitution, Bosnia and Herzegovina was established as the sole legal successor to the Republic of Bosnia and Herzegovina and the Socialist Republic of Bosnia and Herzegovina, and, as such, it remains the owner of all property registered to those predecessors. Similarly, under the Succession Agreement — the agreement among all countries of the former Yugoslavia —Bosnia and Herzegovina is the owner of all former-Yugoslavia property on its territory. The entities have no ownership rights and no basis for claims over any such property.
Bosnia and Herzegovina’s ownership of State property is the right guaranteed by article I of the Dayton Constitution and was unequivocally confirmed as such by a final and binding verdict of the State Court of Bosnia and Herzegovina — a court created by the Office of the High Representative, generously funded and supported by many Governments and staffed by international judges and prosecutors from an even greater number of countries.
It is therefore unacceptable to seek consensus to implement this existing law or to seek political compromises with those who block its implementation. The same mistake was made when the High Representative imposed entity-based privatization in 1998, with obvious negative consequences for the return of refugees, the consolidation of the single economic space and the reintegration of society in general.
One of the demands made by Slobodan Milosevic at Dayton was to divide State property between the entities. He did not achieve that goal, and it is puzzling that some still insist on that demand. It is true that Bosnia and Herzegovina has two entities under the Dayton Peace Agreement, but that Agreement also preserved the legal continuity of Bosnia and Herzegovina, including, of course, ownership of the State property. That was one of the key balances that made Dayton possible, and it also served as a primary cohesive factor between the two entities.
State property is as central to the Dayton Peace Agreement as the two-entity structure. The High Representative rightly points out the continuing challenges to the Dayton Peace Agreement by the Republika Srpska entity authorities. But these challenges will not be answered by strengthening the position of the challengers, especially bearing in mind their open calls for a referendum on secession.
Partitioning State property between the entities will obviously strengthen those claims and eliminate a primary cohesive factor. There is obviously a reason why that was not done in Dayton, and it cannot be quietly introduced now without far-reaching consequences. The High Representative’s recent letter to the State Attorney of Bosnia and Herzegovina, in which he called on the State Attorney to stop the registration of State property, despite the fact that the State Attorney was merely acting on the basis of existing law and legal precedents, encountered strong opposition in Bosnia and Herzegovina. The High Representative did not use the Bonn powers, however.
Thus this letter can only be construed as pressure on the courts and the judicial system that is outside the purview of those powers. The Security Council had a very good reason for insisting on the implementation of the Dayton Agreement “in its entirety” (resolution 1031 (1995), para. 30) when it adopted resolution 1031 (1995). That is precisely what we advocate. The solutions and the myriad difficult compromises built into Dayton ensured that the Agreement would function if and only if all of its elements were fully implemented. The non-implementation of one element made the functioning of many others difficult, if not impossible.
Today, the implementation of Dayton in its entirety has been practically replaced by the implementation of the five goals and two conditions. Some of those goals and conditions have nothing to do with the Dayton Agreement — the signing of the Stabilization and Association Agreement with the European Union, for example. Some of them were resolved in Dayton including the fact that Bosnia and Herzegovina owns most of the State property as the legal successor of the Republic of Bosnia and Herzegovina, as former High Representative Lajčák officially communicated. Some other central elements of Dayton are conspicuously missing from this list of five plus two: the right of refugees to return, for example.
It is not the sheer arbitrariness of this list that is disconcerting, but the fact that the closure of the Office of the High Representative, rather than the implementation of Dayton, has become a goal in and of itself. And one of the central elements of Dayton has been marked for change in order to serve that goal, namely, Bosnia and Herzegovina’s ownership of State property.
This will not lead to Dayton’s implementation in its entirety, but, more likely, to its demise. Dayton was a difficult compromise, creating the necessity for a number of its elements to function in unison. The Office of the High Representative was put in place to ensure precisely such functioning, not to give legitimacy to à-la-carte implementation, just so it can leave. If the mission of the Office of the High Representative has morphed from full implementation mode to departure mode, we can only conclude that this transformation is not in accordance with the clear language of Council resolution 1031 (1995).
At the same time, we cannot be expected to provide assistance for that transformation. Not only do we take our international obligations — including under Security Council resolutions — seriously. We, moreover, remain conscious of the dangers facing Bosnia and Herzegovina if Dayton’s central elements are slowly reduced, modified or completely taken away. For, if one central element of Dayton is on the table, so must be all the others.
In conclusion, I wish to state that article I of the Dayton Constitution, by which Bosnia and Herzegovina does not disappear but continues its legal existence as a State, was the outcome of the patriotic struggle and sacrifices of the citizens of Bosnia and Herzegovina and of the assistance of friendly countries. That is precisely why no one has the mandate to question the meaning of that article or the other pillars of the Dayton Peace Agreement. It is our hope that the Security Council will continue to uphold the commitments of the Dayton Peace Agreement and remain the guardian of peace and stability in Bosnia and Herzegovina and in the region.