For the first time so far, the greatest level of agreement among global powers — Russia, China, and the United States — regarding the mandate of Christian Schmidt and the future of the Office of the High Representative in BiH, demonstrated at the United Nations Security Council, should in practice lead to a gradual reduction of the international protectorate. However, the issue of the so-called Bonn powers remains unresolved, hanging over BiH like the Sword of Damocles.
At the UN Security Council, there is growing discussion about reducing the role of the OHR in BiH and gradually ending the international protectorate.
Particularly controversial are the so-called Bonn powers, which allow the High Representative to impose decisions, amend laws, and remove officials.
These powers originated after the Bonn Conference in 1997 and were used to adopt a large number of decisions in BiH.
Representatives from Republika Srpska argue that the use of the Bonn powers was contrary to the Dayton Agreement and undermined the constitutional order of BiH.
It is stated that the abolition or limitation of the Bonn powers could occur through a political decision of the international community or by closing the OHR, although there is no unified position on how such powers could be annulled.
The debate at the UN Security Council held on Tuesday in New York confirmed the growing view that the OHR and the international protectorate are reaching the end of their role, as for the first time there was open discussion about limiting the role of the High Representative and that the office cannot remain a permanent mechanism of governance, since political processes should increasingly be transferred to domestic institutions and leaders.
The first changes could already become visible in June, through the appointment of a new diplomat who should take over the position of High Representative after Schmidt — who did not have the support of Republika Srpska, nor unanimous support within the UN — announced his resignation from the position which, according to Republika Srpska officials, he has been unlawfully occupying since mid-2021, when he arrived in BiH as the choice of the Steering Board of the Peace Implementation Council (PIC), an institution not defined by the Dayton Agreement.
However, that did not prevent him from using the so-called Bonn powers far more frequently than his predecessors, even going a step further by criminalizing non-compliance with the decisions of High Representatives.
According to statements from Republika Srpska around the time of the Security Council session, OHR officials have, primarily through the use of force, imposed 913 decisions over the years that violated the Dayton Agreement and the Constitution of BiH, creating what they describe as a parallel, anti-Dayton system in BiH.
Schmidt’s name appears on more than 20 imposed acts. Analysts and officials state that the decisions he imposed should be annulled, although there is no unanimous view on who exactly has the authority to revoke them. However, they agree that nothing will have full meaning as long as the so-called Bonn powers remain active.
The role of the OHR was defined in Dayton in November 1995. Shortly afterward, on December 8 and 9 in London, the Peace Implementation Conference was held with the goal of mobilizing the international community. One of its conclusions was the creation of the Peace Implementation Council (PIC).
The Council later met five more times at the ministerial level. The most significant was the Bonn Conference in December 1997, from which the Bonn powers originated. High Representatives used these powers to amend constitutions, impose and change laws, remove officials, ban them from participating in elections, and revoke rights and personal documents without the right to appeal.
Over time, even some former High Representatives openly admitted that such actions were not in line with the Dayton Agreement. One of the first after the UN Security Council session to warn that Schmidt’s legacy and the wider OHR legacy must be addressed was acting director of the Office for International Cooperation of Republika Srpska, Ana Trišić Babić.
- If the Criminal Code of BiH still contains the offense of “non-compliance with the decisions of the High Representative,” then there is no sovereignty – Trišić Babić stated.
However, instead of moving toward sovereignty for BiH, as officials from Republika Srpska claim should happen, politicians from the Bosniak political bloc have repeatedly called on Schmidt, since he announced he would leave the OHR but remain until a successor is appointed, to use the Bonn powers and impose a law on so-called state property, an issue over which Republika Srpska and the Federation of BiH have disagreed for years.
The latest to send such a message was SDA leader Bakir Izetbegović while confirming his candidacy for the Bosniak member of the BiH Presidency.
Milan Petković, a legal expert and member of the Constitutional-Legal Commission of the House of Representatives of the Parliamentary Assembly of BiH, stated that global powers sent a clear message at the UN Security Council — that any form of interventionism in BiH must come to an end and that domestic leaders must take responsibility.
- Calls by certain Bosniak politicians toward the departing Schmidt are completely unacceptable. He committed the most brutal legal violence, flagrantly violating international law, as well as the political and constitutional order. We hope BiH is entering a new period in which decisions will have to be made within domestic institutions – Petković told Glas Srpske.
He believes Schmidt’s decisions can be annulled through BiH institutions, including the Constitutional Court of BiH.
- The Commission for Constitutional Issues adopted a conclusion that High Representatives do not have the right to impose laws or amend the Constitution. The Constitutional Court must respect that – Petković emphasized.
In one analysis by the National Assembly of Republika Srpska regarding how the “welcoming of intent” evolved into dictatorial Bonn powers, it is stated that the powers referred, among other things, to “temporary measures entering into force when parties are unable to reach agreement and remaining valid until the Presidency or Council of Ministers of BiH adopts a decision on the issue in accordance with the Peace Agreement.”
- Therefore, this does not apply to the Parliamentary Assembly, which is the legislative body, meaning that even those powers did not grant the authority to impose laws, because the High Representative could not substitute the legislative body even under those powers. That is why the OHR invented the formula that the High Representative “imposes a decision” rather than directly “adopting a law,” so it would not appear that he was legislating – according to the position of the National Assembly of Republika Srpska.
Will and method
Constitutional law professor Mile Dmičić previously told Glas Srpske that the establishment and decision-making process of the Peace Implementation Council in BiH is not foreseen by any source of international law. Asked how the Bonn powers could be annulled, he stated that it is a complex process because of their deep and long-term entrenchment in the legal and political system of BiH and its entities.
- This will primarily depend on the will and unified position of the international community, as well as the agreement and coordinated action of institutions within BiH. Annulment is possible only through a political decision of the Peace Implementation Council or by closing the OHR – Dmičić said.
Source: Glas Srpske
