OPEN LETTER FROM “CIRCLE 99” TO MEMBERS OF THE PEACE IMPLEMENTATION COUNCIL

Sarajevo, Bosnia and Herzegovina

6 June 2023

Office of the High Representative

Peace Implementation Council

All Members of the Council

OPEN LETTER FROM “CIRCLE 99”

TO MEMBERS OF THE PEACE IMPLEMENTATION COUNCIL

Esteemed Excellencies,

Members of the Peace Implementation Council,

            The Association of Independent Intellectuals “Circle 99,” in its role as an integral part of civic society in Bosnia and Herzegovina, convenes well-known intellectuals and members of the academic community, who for more than three decades have participated in “Circle 99” sessions to discuss various issues concerning the social and political life of the country.  At the same time, within the framework of the provisions of the General Framework Agreement for Peace in Bosnia and Herzegovina (the Dayton peace agreement), “Circle 99” has in the past maintained contact and cooperation with the Office of the High Representative, including cooperation with various persons who acted at various times as High Representatives.

            However, recently “Circle 99” has observed markedly problematic activities emanating from the Office of the High Representative.  For this reason, through this open letter we would like to inform you about this in the belief that you can undertake appropriate measures in order to eliminate these irregularities.

1. We are familiar with the Conclusions of the PIC in 1997, which introduced the “Bonn Powers” of the High Representative as a noble effort to assist post-war Bosnia and Herzegovina in constructing self-sustaining and functional state institutions.

• Nevertheless, when one studies Article IX of the Conclusions of the PIC in Bonn in 1997, which developed the “Bonn Powers” for the High Representative, then it appears necessary to note several significant issues:
  • Article IX/2, paragraphs a. and c., refer to “joint institutions,” which is contrary to the finding of the Constitutional Court of Bosnia and Herzegovina of January 2023, which confirmed that this reference is unconstitutional, since the only correct phrase would be “institutions of Bosnia and Herzegovina.

• Article IX incontrovertibly states that the High Representative can make obligatory decisions with the purpose of facilitating the unfettered work of the erroneously named “joint institutions,” obviously in reference exclusively to the state institutions of Bosnia and Herzegovina.
  • Article IX/2b clearly states that the High Representative can take temporary measures when the parties cannot come to agreement, which measures are of limited duration until the Presidency of Bosnia and Herzegovina or the Council of Ministers makes a decision on the basis of the Dayton peace agreement in a certain field and on a certain issue.
  • Article IX/2c clearly states that the obligatory decisions could concern other measures ensuring the unfettered work of “joint institutions” (the institutions of Bosnia and Herzegovina) with the aim of ensuring the implementation of the Dayton peace agreement.

• With this in mind, it is questionable why the High Representative strives to make decisions that are obviously not within the purview of his mandate, such as the decision of 2 October 2022, which was an intervention only in one entity of Bosnia and Herzegovina, meaning that the “other party” hindering the implementation of the civilian aspect of the peace agreement in this case does not exist.  If we take into account that there is no “other party” in this intervention and that the decision refers exclusively to a single entity of Bosnia and Herzegovina (the Federation of Bosnia and Herzegovina), then it is entirely clear that this does not refer to the institutions of Bosnia and Herzegovina, which are exclusively mentioned in the “Bonn Powers.”

• We are familiar with the decision of the Constitutional Court of Bosnia and Herzegovina concerning the decisions of the High Representative of 2 October 2022.  But we are also familiar with the fact that this decision was not endorsed by a majority of incumbent judges.  Rather, the President of the Constitutional Court used a “double vote,” thus creating the feeling among the public that this was a political decision rather than a legal one (especially when the separate dissent opinion of three of the Court’s judges is taken into account).

• The PIC Conclusion of 1997 expresses special concern about the non-existence of strong multiethnic political parties.  In fact, the decisions of the High Representative of 2 October 2022 and 27 April 2023 render the existence of multiethnic political parties irrelevant.  There is a question about the real intention of the Office of the High Representative and the High Representative himself as concerns Bosnia and Herzegovina as a state of equal citizens.

• The decision of the High Representative of 27 April 2023 suspended for 24 hours the constitution of one of the two entities.  On that occasion, he promulgated a “temporary decision” which goes into effect in one year, in complete contradiction to Article IX of the PIC Conclusions of 1997.  Temporary decisions of the High Representative have limited duration until the Presidency of Bosnia and Herzegovina or the Council of Ministers makes appropriate decisions, but in this specific issue they do not have the authority to make decisions concerning entity constitutions.

• Information available to the public is that the High Representative intends to issue another decision by which he reportedly plans to change the Criminal Code of Bosnia and Herzegovina and to make non-implementation of decisions of the High Representative a criminal act, which is highly problematical.  The Dayton peace agreement is an international agreement that is implemented within the framework of the Vienna Convention on Treaty Law, which assumes that signers of an agreement cannot impose supplemental rules and obligations which would be outside the purview of the agreement.

• The pre-announced activities and eventual decisions of the High Representative concerning the issue of state property, especially taking into account his public statements on this issue, are a cause for concern.  This is a question of the implementation of the civilian aspect of the peace agreement.  This issue has of course already been resolved through the constitutional provisions about legal succession, which existed even prior to the signing of the Dayton peace agreement.  General and public properties – such as rivers, the sea, river and sea coastlines, water, air and others – cannot have a specific owner, nor can a physical or legal person exert the right to ownership over general and public properties.  So, the intentions of the High Representative to divide property (including general and public properties) among the entities and cantons are very questionable, distressing and legally unsustainable.

• The general public in Bosnia and Herzegovina is rightly concerned about the direction of the revision of electoral legislation, which should be preceded by a revision of the Constitution of Bosnia and Herzegovina.  In this way, the state Constitution can be fully harmonized with the European Convention on Human Rights.  It is especially important that every citizen of Bosnia and Herzegovina be assured of equal active and passive electoral rights.  Only after this can there be a revision of electoral legislation in Bosnia and Herzegovina, as well as the necessary harmonizing of entity constitutions with the state Constitution.  In addition, the finding of the Venice Commission from 2005 should be taken into account, particularly when referring to the reforming of the House of Peoples (the legislative body whose delegates are chosen not by general elections but by political parties) in accordance with European standards and practice.  Today we are witness to a House of Peoples of Bosnia and Herzegovina that experiences political blockage and pressure.

We believe that this letter represents our contribution to the implementation of the

civilian aspect of the peace agreement in demonstrating irregularities and inconsistencies.  We call upon members of the PIC to address the contentions in this letter and to undertake appropriate measures.

            Sincerely,

            Adil Kulenovic, President