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Ladies and Gentlemen,
It is a distinct pleasure to appear at UCLA School of Law as a guest of the Sanela Diana Jenkins Clinic on International Justice.
Before I begin, please allow me to express my gratitude to Sanela for her vision and her dedication to the study of human rights and the pursuit of justice in the wake of enormous atrocities. Sanela is one of the hundreds of thousands of Bosnian refugees whose lives were uprooted by the aggression, war crimes, crimes against humanity and genocide that befell Bosnia and Herzegovina in the early 1990’s. Despite the difficult circumstances, Sanela put herself through school and – if there is an understatement – did well in life. But her greatest achievement is her commitment to the victims, to those whose voices have not often been heard. This Clinic, as well as a myriad of other projects that Sanela has established, is a testament of that commitment, and we thank her sincerely.
Allow me to also express my thanks to Professor Steinberg and Professor Kaye who are investing an enormous effort to ensure the success of the Clinic and to see that its purpose is fulfilled. And finally, my thanks go to the students whose hard work, intellectual curiosity and commitment to international justice are what really drives programs like this one. While many of you may go off to other projects and greener pastures after law school, I am certain that few will be as fulfilling as the work you are doing here.
Which brings me to why that work is important. As you know, the International Court of Justice ruled on February 27, 2007 that genocide was committed in Bosnia and Herzegovina. The ruling holds that the genocide was committed by the institutions of Republika Srpska, its army and the police in particular. Serbia, at the same time, became the first country in history to be found responsible for violating the Genocide Convention.
Just yesterday, the International Criminal Tribunal for the former Yugoslavia confirmed the indictment against Radovan Karadzic, the first President of Republika Srpska, which charges him with numerous crimes, including with two counts of genocide, across Bosnia and Herzegovina. The Republika Srpska commanding officer, General Ratko Mladic, is still at large, but it is expected that he will face similar charges.
These atrocities came to an end when the United States intervened militarily in Bosnia and Herzegovina in late 1995, brokering the Dayton Peace Agreement shortly thereafter. While creating two entities within Bosnia and Herzegovina, the Dayton Agreement contained all the necessary elements to reverse the effects of genocide and ethnic cleansing, and to allow Bosnia and Herzegovina to reestablish itself as a stable, democratic and fully functional state.
That has not happened, however. It has not happened because a number of Dayton’s most important provisions were not implemented. While Dayton, for example, guarantees the right of refugees to return, targeted and organized obstructions ensured that the ethnic distribution today resembles that which existed shortly after the war. From the pre-war population of over 46 percent Bosniaks and Croats, less than 8 percent remain in what is now Republika Srpska.
These numbers, in turn, have transformed the decision-making process in Bosnia and Herzegovina into an ethno-territorial arrangement, where blockades are the norm. To illustrate, in the thirteen years after Dayton 280 laws were adopted at the State level, many of them imposed by the High Representative. At the same time, 260 proposed laws were blocked by less than twenty-five percent of the deputies in the State Parliament.
As some of you may know, the highest court of a Western European country delivered a ruling yesterday that held that the country in question was responsible for the deaths of its Jewish population during the Holocaust. But the court also ruled that “measures taken since the end of the Second World War have compensated for the damage.” I refuse to believe that anything – anything – can ever compensate for genocide. We must always continue to try, while remaining aware that we will never be able fully compensate.
But, what happens when little or no effort is made to reverse the effects of genocide? What happens when several individuals are tried and convicted, but the results of genocide are allowed to remain? If I can ask you to do one thing at this Clinic, it would be to analyze the effects of the UN Articles on State Responsibility, and their mandate that no State shall recognize as lawful a situation created by a breach of a peremptory norm of international law, which clearly includes the crime of genocide. These articles are a product of over twenty years of work of the International Law Commission and are considered to simply codify the existing body of customary international law. But what is their purpose if they are unenforceable or if they are enforceable on an ad hoc basis? Bosnia and Herzegovina has been a perfect case study for international legal scholars, but more often than not it was the study of how international law is bent to satisfy political considerations. I hope that instead we can become a positive precedent that will serve not only our interests, but also the interests of every state that finds its rights severely violated.
You may ask yourself: How is it possible to reverse the effects of genocide? We cannot bring back the dead. That is for sure. Thirteen years after Dayton, it appears that we cannot ensure that everyone returns to his or her former place of residence. And we cannot suddenly make Srebrenica into a thriving, prosperous town that it once was from the grisly monument to one of the worst atrocities in human history that it is today.
But there are things that we can and should do. We should do those things not because it is a morally right course, but in order to ensure that Bosnia and Herzegovina and, with it, the Western Balkans as a whole embarks on the road to permanent peace, stability, and Euro-Atlantic membership.
It is a firm United States position that the only stable solution in the western Balkans is to have a single state of Bosnia and Herzegovina rather than some sort of ethnic carve-up. In order to make that objective realistic long term, we have to ensure that this state is viable long-term. The state that we have now is not because it is dysfunctional.
The State is dysfunctional because of the asymmetrical arrangements between the State and the lower levels of government. This arrangement is not the results of the Dayton Agreement, but of the lack of implementation of its key provisions. Dayton could have gone both ways. Its full implementation would have created a viable and functional state. Obstruction of its key provisions, however, was certain to create a State that exists at the will of its entities and serves at their pleasure.
To put this into perspective, the U.S. Constitution provides the Federal government with eighteen enumerated responsibilities. The rest are essentially left to the states. But neither level of government can effectively block the other from exercising their respective responsibilities. In Bosnia and Herzegovina, the State has fourteen enumerated responsibilities, which is close enough to the U.S. model, and the rest are granted to the entities. However, while the State cannot prevent the entities to exercise their responsibilities, one entity – Republika Srpska – can and does block the State from exercising its own. This is due to the fact that the voting mechanism has, through obstructions of refugee returns, morphed into an ethno-territorial voting mechanism, whereby the RS entity represents only one ethnic group. On the other hand, the other entity – the Federation – cannot in practice employ this voting mechanism.
If the stated U.S. objective of having a single state of Bosnia and Herzegovina that is capable of fulfilling its domestic and international obligations is to be achieved, two things must be done:
1. The State must be given a political life of its own that is independent of the entities. The State must be able to carry out its stated responsibilities through a fully democratic process that, at the same time, contains protections for the vital interests of each ethnic group. Bosnia and Herzegovina is a complex country, and those vital ethnic interests must be protected. But no country, Bosnia and Herzegovina included, can function as a viable state if every decision can be blocked. Unless reform is undertaken in this direction, the debate about what specific responsibilities the State should have in the future is misguided. We could transfer all responsibilities to the State level, but that will be a futile exercise if the State has no mechanism to implement them.
2. In order to achieve the first objective, the country’s leadership must be elected from the entire territory of Bosnia and Herzegovina. Due to the obstructions in refugee returns, today’s politicians are forced to appeal to their ethnic base only. By electing their representatives at the State level from the country as a whole, the voters will be able to choose between those who offer concrete economic and social programs and those who are mired in the politics of the past. The political elites will, in turn, have to concentrate on building appeal that transcends ethnic lines and that truly serves the real interests of all of the country’s citizens, not just the perceived interests of individual ethnic groups. Moreover, the elected representatives will have the mandate of the entire country when carrying out the State’s responsibilities, greatly eliminating tolerance for blockades.
The debate about the future of Bosnia and Herzegovina has for far too long been steered towards the wrong issues. The issue is not whether Bosnia and Herzegovina has multiple levels of government aimed toward the separation of powers. The issue is whether those levels of government are truly able to exercise their given responsibilities independently of each other. The issue is whether there will be a viable, functional Bosnia and Herzegovina with true separation of powers, or a dysfunctional, unstable Bosnia and Herzegovina where the entities decide how the State shall exercise the powers that it clearly has under the Constitution.
I purposefully chose the law school setting for these remarks because you can appreciate these concerns whether you are a University professor or a ONE L who is just beginning to tackle Constitutional legal issues. I also chose it because in Bosnia and Herzegovina, unlike in the United States, we have the problem of too few lawyers tackling important issues. We need to bring the law back into this debate, as it has taken the back seat to political considerations. What some of you are doing here is already going in that direction and for that I thank you once again.