Išerić: A Response to Dodik's Reading of Dayton

By Enver Išerić, President of the Association of Guardians of Bosnia and Doctor of Laws

Milorad Dodik and his advisors have been 'reading' the Dayton Peace Agreement for almost thirty years and still cannot grasp it. Something is wrong. Either they genuinely cannot understand it, or they are deliberately distorting facts with the aim of convincing the domestic and international public that only they respect this agreement, while everyone else violates it at every step. These activities have intensified after the adoption of the declaration from the "All-Serb Assembly," which aims to destroy the state of Bosnia and Herzegovina.

Thus, in his text "Reading the Dayton Agreement," Milorad Dodik claims that when the entity of Republika Srpska is accused of violating this agreement, it is never stated which article of the Dayton Agreement the entity is violating or how. The answer to this question is very short and clear. You are violating all annexes and every article of that agreement in the worst and most brutal way.

Dodik also dislikes the decisions of the Constitutional Court of Bosnia and Herzegovina and claims they are unconstitutional. Can anyone claim that the decisions of the Constitutional Court can be unconstitutional? They are final and binding for everyone. This is stated in the Constitution of Bosnia and Herzegovina, which is an integral part of the Dayton Agreement. Here is the first violation of the Dayton Peace Agreement and Article VI 4 of the Constitution of Bosnia and Herzegovina, and you violate this provision by not accepting the decisions of the Constitutional Court.

Dodik also claims that the High Representatives (and after the first one, Carl Bildt, all others were illegal) claimed to be the final interpreters of the entire Dayton Agreement, even though Annex 10 - "Agreement on the Implementation of the Civilian Aspects of the Peace Agreement," clearly states in Article 5: "Highest authority for interpretation - The High Representative shall have the final authority on the ground in regard to the interpretation of this Agreement on the Implementation of the Civilian Aspects of the Peace Settlement".

If the Dayton Peace Agreement has a military part (Annex 1A - Agreement on the Military Aspects of the Peace Settlement), what part does this agreement have besides the civilian part, since all other annexes are civilian, so that Dodik has grounds to limit the High Representative's rights to interpret its annexes? Do he and his advisors consider that the Constitution of Bosnia and Herzegovina is not part of the civilian agreement?

Dodik claims that "many decisions of the Constitutional Court of BiH were made without stating the constitutional basis, which does not exist, with the overvoting of Serb and occasionally Croat judges." Well, show us a decision of the Constitutional Court of Bosnia and Herzegovina in which the constitutional basis is not stated. As for the Constitutional Court's statement that it makes decisions based on "constitutional necessity," it is logical that every decision is made based on the need for conformity of the contested acts with the Constitution of Bosnia and Herzegovina, and that is a constitutional necessity, which is why not only the Constitutional Court of Bosnia and Herzegovina but also the constitutional court of every state was established.

Furthermore, Dodik, by disputing the decisions of the Constitutional Court, states: "In another decision confirming the imposed Law on the Court of BiH, which does not exist in the BiH Constitution, instead of the non-existent constitutional basis, they stated - 'It can be expected.' What do you think, are such decisions possible in any UN member state in the world, by a constitutional court as an organ responsible for preserving and consistently interpreting constitutional provisions?"

Therefore, we must remind him that Article III 5 of the Constitution states: "(a) Bosnia and Herzegovina shall assume jurisdiction over such matters as are agreed by the Entities; matters designated in Annexes 5-8 of the General Framework Agreement; or as may be necessary to preserve the sovereignty, territorial integrity, political independence, and international subjectivity of Bosnia and Herzegovina, in accordance with the division of responsibilities between the institutions of Bosnia and Herzegovina. Additional institutions may be established as needed to carry out these responsibilities".

And the establishment of the Court of Bosnia and Herzegovina is precisely necessary for preserving the sovereignty, territorial integrity, political independence, and international subjectivity of Bosnia and Herzegovina. Thus, this, like all other decisions of the Constitutional Court, is based on the Constitution of the state.

In addition, Dodik and his advisors fall into another trap of their own making. Dodik also mentions the Steering Board of the Peace Implementation Council (PIC) in his "Reading of the Dayton Agreement," which he calls non-existent. How then can Dodik claim that only Carl Bildt was a legal High Representative appointed by the PIC (Peace Implementation Council)? There is UN Security Council Resolution 1031 of December 15, 1995, which in paragraph 26 approves the establishment of the High Representative and accepts the conclusions of the London Conference held on December 8 and 9, 1995 (PIC), one of which was the appointment of the High Representative.

Thus, the first High Representative was appointed by the PIC, not the Security Council. Nor was his confirmation by the UN Security Council requested or necessary. The Conference also established the PIC Steering Board, chaired by the High Representative.

Furthermore, how can he claim that the PIC is non-existent if he accepts the appointment of the first High Representative by that body and if the Security Council accepted its conclusions by its resolution, thus accepting the existence of that body, which is supposed to monitor peace in Bosnia and Herzegovina and the implementation of the Dayton Peace Agreement?

Dodik also emphasizes the statement of the Constitutional Court of Bosnia and Herzegovina, which stated in Decision 5/98: "Unlike the constitutions of many other countries, the BiH Constitution in Annex 4 of the Dayton Agreement is an integral part of an international agreement. Therefore, Article 31 of the Vienna Convention on the Law of Treaties - which establishes the general principle of international law, and these principles are, according to Article 3.3.(b) of the BiH Constitution, an integral part of the legal order of Bosnia and Herzegovina and the entities - must be applied in the interpretation of all its provisions, including the BiH Constitution".

Dodik is right when he claims that the Constitution of Bosnia and Herzegovina is part of an international agreement. And it should not and could not have been under international law. Other states should not participate in the adoption of the Constitution of a sovereign state, a member of the United Nations, as this is contrary to international law.

And if they refer to the Vienna Convention on the Law of Treaties in this regard, then they should also have stated that Article 31 of the Vienna Convention on the Law of Treaties states: "A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of the object and purpose of the treaty". And what is wrong with that? The Dayton Peace Agreement is interpreted in good faith, and by the High Representative who is part of that agreement.

Is it interpreting that agreement in good faith to dispute both the High Representative and his decisions?

Dodik also refers to previous principles, i.e., numerous peace initiatives, but also to the preamble of the Dayton Agreement, which, among other things, states: "Having regard to the agreement of 29 August 1995, by which the delegation of the Federal Republic of Yugoslavia was authorized to sign on behalf of the Republika Srpska those parts of the peace plan relating to it, with the obligation to implement the agreement reached strictly and consistently." Dodik further states: "This confirms that Republika Srpska was indirectly a party to the Dayton Agreement itself, because without its consent, neither FR Yugoslavia, now Serbia as its legal successor, could have been a signatory to the peace agreement."

Dodik has written all this well. He just hasn't told us how it came about that the then Republika Srpska authorized the Federal Republic of Yugoslavia to sign parts of the peace agreement on its behalf. That is the real question.

And the answer is very clear. The Federal Republic of Yugoslavia began to lose the war it had waged against Bosnia and Herzegovina and was forced to conclude peace. The goals that had been set, namely the annexation of parts of Bosnia and Herzegovina to Serbia, were not achieved. The then leaders of Republika Srpska were not satisfied with the developments and demanded that the war for territory continue. Therefore, there were disagreements between these delegations during the peace negotiations, so they were forced to "authorize" Slobodan Milošević to conduct negotiations on their behalf, and they had no further say.

Dodik also lists the pillars contained in the Dayton Peace Agreement. If you want to read us the Dayton Peace Agreement, then read us where these pillars you mention are mentioned. Your pillars are not there. You list four "pillars" - the first pillar: "Bosniaks, Serbs, and Croats as constituent peoples (along with others) and citizens of BiH" - Preamble of the BiH Constitution. The second pillar: "Bosnia and Herzegovina shall consist of two entities, the Federation of Bosnia and Herzegovina and Republika Srpska" - Article 1.3. of the BiH Constitution. The third pillar: "All governmental functions and powers not expressly assigned to the institutions of Bosnia and Herzegovina by this Constitution shall be the responsibility of the entities" - Article 3.3.a) of the BiH Constitution. The fourth pillar: "Neither entity shall threaten or take action against the other entity, nor shall armed forces of one entity enter or remain in the territory of the other entity without the consent of the government of that other entity and the Presidency of BiH. All armed forces in Bosnia and Herzegovina shall operate in accordance with the sovereignty and territorial integrity of Bosnia and Herzegovina" - Article 5.5. a) of the BiH Constitution.

And what you have stated is correct, but these are not pillars, because that is not what the Constitution says. And that is not disputed. Who has ever disputed, for example, your first pillar "Bosniaks, Serbs, and Croats as constituent peoples (along with others) and citizens of BiH." But if you are listing these pillars, why did you stop there?

Why didn't you list as the fifth "pillar" the provision of the Constitution that stipulates that the decisions of the Constitutional Court are final and binding? Why didn't you list the sixth "pillar" from Article III 5 of the Constitution, which stipulates that Bosnia and Herzegovina shall assume jurisdiction necessary to preserve the sovereignty, territorial integrity, political independence, and international subjectivity of Bosnia and Herzegovina?

You claim that the Dayton Agreement is the "founding document of BiH, as stated by Dayton negotiator Christopher Hill, the current US Ambassador to Belgrade."

Now, I ask you, is the statement of an ambassador from 2024 an integral part of the Dayton Peace Agreement? Is that how the Dayton Agreement is read? Moreover, that statement is not accurate at all. Only what is written in the Constitution is correct: "The Republic of Bosnia and Herzegovina, whose official name from now on is 'Bosnia and Herzegovina,' shall continue its legal existence under international law as a state, with an internal structure modified by this Constitution, and with internationally recognized borders. It shall remain a member state of the United Nations and may, as Bosnia and Herzegovina, retain membership or seek admission to organizations within the United Nations system, as well as to other international organizations."

You claim that "the competencies of the entities, and thus of Republika Srpska, undoubtedly include: defense and military, judiciary (with the exception of the Constitutional Court of BiH with clearly defined competencies according to the BiH Constitution, not according to interpretation and self-attribution of competencies, which the Constitutional Court of BiH has done extensively), finances, including everything - direct and indirect revenues." But all these competencies have been transferred to the state of Bosnia and Herzegovina either by agreement of the entities or due to the need to preserve the sovereignty and territorial integrity of the state, as stated in the Constitution.

Likewise, you accuse others of not stating which articles of Dayton and the Constitution they are violating, while you claim that competencies for property also belong to the entities, without stating in which article of the Constitution this is written. You are reading the Dayton Agreement very poorly.

What is important to you is to proceed with the implementation of the conclusions of the "All-Serb Assembly," which insists on the substantive and formal implementation of the Dayton Peace Agreement, as an international treaty that cannot be changed unilaterally or through interventionism. The "All-Serb Assembly" believes that Republika Srpska can, to the extent it deems appropriate, activate all competencies that are foreseen as entity competencies according to the Dayton Peace Agreement".

In translation, this means that you want to undermine the legal system of Bosnia and Herzegovina and create conditions for the independence of the Republika Srpska entity.

You also refer to Article 3.3.b) and state that "the BiH Constitution stipulates that certain international legal documents are an integral part of the BiH Constitution and are directly applied in BiH, listing, among others, two covenants: the International Covenant on Civil and Political Rights and the Covenant on Economic, Social and Cultural Rights, which have an identical Article 1 stating: 'All peoples have the right to self-determination.'"

You also quote parts of these international documents, stating: "The States Parties to the present Covenant, including those responsible for the administration of Non-Self-Governing Territories or Trust Territories, shall promote the realization of the right of self-determination, and shall respect that right, in conformity with the provisions of the Charter of the United Nations."

Is it not clear to you that this right of peoples to self-determination applies to peoples living in territories that are not independent and are under trusteeship or any other form of dependency? This is how these international documents are read, and it is by no means the basis on which you invoke the right of Bosnian Serbs to self-determination.

In your reading of Dayton, you also state the following: "The existence of the OHR and foreign judges in the Constitutional Court of BiH is absolutely incompatible with the process of European integration. Publicly expressed views of political actors from Sarajevo clearly indicate that both the OHR and the Constitutional Court of BiH represent instruments of Bosniak policy in dealing with Republika Srpska. Is it even possible to build a future in a country where some of the constituent peoples, and now two out of three, even if only one, are fighting for rights that belong to them by constitution?"

Perhaps their existence is incompatible with the process of European integration. But they will exist as long as necessary, even if they never integrate into the European Union. And for you, the non-implementation of European Court judgments is compatible with European integration. Again, you are misreading Dayton.

As for the alleged struggle of two peoples, as you state, for rights that belong to them by the Constitution, it would be good to say what rights you have that someone is denying you? Do you think it is the right to destroy the state of Bosnia and Herzegovina? Well, you will never get that right.