Blog Edwarda Fergusona: Rewriting History

BiH is rich in history, and there are many different versions of history. But what is concerning is how the histories of war and peace are being rewritten to promote the political agendas of various groups. Newspapers are full of debates about the past. Much less attention is paid to the future. Those of us who want to focus on solving the real problems facing ordinary citizens in BiH today – unemployment, inequality and corruption, are constantly being drawn into pointless debates and artificial crises. Divisions over the past are used to divert attention from reforms and modernisation that politicians see as a threat to their current control over access to jobs, money and patronage.  That is frustrating.

Rewriting the war

A large part of the revisionism in recent times is focused on the Second World War. This is not exclusive to BiH, it is happening across the region. But here we are witnessing attempts to rehabilitate the reputation of figures such as Ante Pavelić or Draža Mihailović, and just a few weeks ago, a school in Sarajevo was named after an antisemite and Nazi sympathiser, Mustafa Busuladžić.

Perhaps even worse is the glorification of those convicted of crimes committed in more recent times. I particularly remember the hero's welcome prepared for Dario Kordić in 2014, after he was released from prison for crimes against humanity. And not only was a student dormitory in Pale named after Radovan Karadžić, but in October, he was publicly awarded a recognition by the National Assembly of the RS. 

Why is this important?

It is important because the first step towards reconciliation is preparing for the future based on the lessons of past tragedies. This first requires acceptance of the crimes committed and a commitment not to allow such crimes to be repeated.

It is important because in Annex 7 of the Dayton Peace Agreement, the state and entity authorities committed to creating “political, economic and social conditions conducive to the voluntary return and harmonious reintegration of refugees and displaced persons”. Glorifying those who committed war crimes against persons of other ethnicities and who drove them from their homes is a clear violation of this commitment.

And it is important on a human level. The war of the 1990s brought nothing but suffering to most people in this country. Many of its victims are still alive today. Today, deliberate provocations, divisive rhetoric and historical revisionism – all of this brings back old fears and prevents BiH from moving forward.

Rewriting peace

That is bad enough. But the rewriting of history does not stop at whitewashing war crimes. There are increasing challenges directed at the key structures and institutions established under the Dayton Peace Agreement. Ironically, these challenges usually come from those who most strongly insist on adherence to the “letter” of Dayton. To paraphrase the Anglo-Irish statesman Edmund Burke, who said “it is a common popular error to think that the loudest complainers for the public are the most anxious for its welfare”.

Challenges to Dayton come in various forms. I have witnessed attempts by Bosniaks to deny or ignore the constitutional powers of Republika Srpska.  I have seen attempts by Serbs to weaken and degrade the constitutional authority of the state of BiH. And I have seen attempts by Croats to challenge and disrupt the decision-making process at the level of the Federation of BiH.

None of this will help BiH make progress. That is why, when launching a new international approach to BiH in 2014, we said we would work within the existing institutional framework, if others were willing to do the same.  It is entirely legitimate for Republika Srpska, or the cantons, to decide on matters for which they have constitutional competence. But, for the system to function, they must then offer the same degree of respect they demand for themselves, towards the authority of others.

That approach is part of the coordination mechanism.  It reflects some of the key principles of the Dayton Agreement: state sovereignty and the transfer of a large number of powers to the entity and cantonal levels.  It also reflects giving priority to decision-making based on consensus among the three constituent peoples and three different levels of government, and respect for the rule of law.

I had hoped that this decision on the coordination mechanism would herald an era of consensus in Bosnian and Herzegovinian politics. I still hope so. But, at least for now, crises and challenges continue. Too many leaders persist in treating the Constitution as an à la carte menu, accepting the parts they like and ignoring those they do not.

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

The United Kingdom fully supports the right of the RS to its existence, as an essential and integral part of BiH, and we support the right to mark that existence with a holiday. We also support the right of the RS to hold a referendum on issues that fall within its constitutional competences, and within the framework of the BiH Constitution. But, the Constitutional Court of BiH decided that the choice of January 9th for RS Day was discriminatory and banned the holding of the referendum. Yet it was held.

Our primary concern, as a member of the Peace Implementation Council, is not the issue of the holiday, but upholding the BiH Constitution and the authority of the Constitutional Court. Honestly, I would have preferred that this issue had not been raised at all, at a time when there are numerous, much more important issues to focus on. But it was raised and the Court made its decision.

The Constitutional Court of BiH is probably the most important Dayton institution. Under the Peace Agreement, it is the only court with the authority to decide constitutional disputes between different levels of government and its decisions are “final and binding”.  By refusing to accept the Court's decisions, the RS Government and National Assembly have exceeded their powers and decided to exercise authority beyond their constitutional rights – in other words, they have done exactly what they accuse others of doing.

Challenges have not only been placed before the Constitutional Court. The Court of BiH has also been in the firing line, with accusations that it is somehow illegitimate because it is not part of the “original Dayton”. But, “original Dayton” states that the state has responsibility for, among other things, “the implementation of international and inter-entity policies and regulations of criminal laws” and to “preserve the sovereignty, territorial integrity, political independence and international personality of Bosnia and Herzegovina”. It also clearly states that “additional institutions may be established as necessary to carry out these responsibilities”.

On this basis, and following a decision by the High Representative, the Court of BiH was established on July 3, 2002, by a vote in the Parliamentary Assembly of BiH.  Given recent public statements, it is important to note that representatives of the SNSD voted for the law and that delegates from the RS did not apply the entity veto mechanism.  The establishment of the Court of BiH was enacted by the signatures of Mariofil Ljubić and Dr Nikola Špirić.  A very similar process was followed for the establishment of the Prosecutor's Office of BiH on October 29, 2003, which was enacted by the signature of Dr Špirić.  These were legally binding decisions confirmed by the Constitutional Court of BiH and any changes must be carried out through the prescribed procedure in accordance with established constitutional procedures.

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

There are two important things here.  The first is that there are two entities.  Not one, and not three.  As members of the Peace Implementation Council, we are committed to preserving the rights and responsibilities of these two entities – Republika Srpska and the Federation of BiH, just as we are committed to the same for the state.  Any changes to this model can in practice only occur with the consent of the three constituent peoples in BiH.

The second thing is that the Constitution determines that the sovereignty of BiH lies exclusively at the state level.  BiH is not a voluntary confederation in which the entities have a right to secession.  They do not.  The entities legally exist only on the basis of the Constitution, as integral parts of BiH.  That is why it is legally incorrect to say that the entities, or any of their institutions, predate the Dayton Peace Agreement.

Unfortunately, too much political space in BiH today is consumed by these attempts at legal and historical revisionism. Even worse is that all of this is designed to distract attention from the failure to address the enormous social and economic challenges facing BiH. And while politicians argue, thousands of young people leave this country, taking with them their talent, optimism and ambitions. And as we look ahead to 2017, a rare year without elections, my New Year's wish is that less time, energy and money be spent on lawyers and historians, and much more on economists and entrepreneurs.