A GLANCE AT DAYTON PAPERS

(DE)MILITARIZATION OF BOSNIA & HERZEGOVINA

AIM Sarajevo, December 18, 1995

By signing of the Dayton agreement, horrors of war have been interrupted in Bosnia & Herzegovina, and chances for peace created. This long-suffering country had already reached the verge of total destruction in which continuation of war would have led not only to an irreversible dissolution of the state, but to further, even greater destruction of all kinds, and even the almost inevitable dragging of other countries into the conflict. No victory could have justified its victims, both due to the fact that their number has already appalled the whole world and due to the fact that fundamental characteristics of life in this space eliminates all possibility that an integral state of B&H could be created by military means.

The process of constructing its true being will, with no doubt, be exceptionally difficult and long. Its foundation and framework is the peace agreement, and the reality of its implementation is a devastated and war-torn country. This war has created a new reality, full of sorrow, bitterness and discontent, which nations of Bosnia & Herzegovina need to overcome jointly in order to learn to live together again. That is why this agreement, even if it included no dangerous compromises and weak solutions, has a difficult road of implementation ahead of it. Success certainly depends on the fact whether all parties will be as good as their word. But, without a domineering presence of the international community in the life of the state of B&H and for a long period tocomw - its chances are truly poor.

Pursuant to the Dayton Agreement, Bosnia & Herzegovina is a complex state with a distinctly complicated state structure and pronounced division of sovereignty between itself and its members. Its competences are very modest, and its power is deprived of the major supports of protection of the constitutional system - army, police and judiciary completely. The procedure of decision-making in joint state agencies is very complex, with a large possibility to be blocked and with no essential instruments to ensure their implementation in its entities (if they fail to abide by the rules).

Yet, all the available facts are leading to the conclusion that the adopted solutions are an optimum that could be achieved at the moment, although, for the sake of the truth, one must say that they are the inevitable consequence of their limitations caused by previous bad solutions, primarily the Washington Agreement on establishing B&H Federation. The haste with which they were reached at the time and disregard of integral interests of the state of B&H, probably conditioned by the motivation to "punish" the opposite party, led to two key bad solutions with permanent consequences - B&H were divided according to the ethnic criterion and percentage of territories, and its three constituent nations were distributed into different regions. The fact that Dayton Agreement preserved the solution with two nations (Boshniaks and Croats) constituent in one, and the third nation (the Serbs) in another part of B&H - instead of making all three nations constituent in the entire territory of the state - if it does not prove to be fatal, will certainly be highly harmful both for reintegration of its statehood and for practicing and protection of human rights and fundamental freedoms.

Creators of the peace Agreement should have also critically assessed whether the existing legal and state profile of B&H Federation were complementary with the established objective to preserve the integral state of B&H. A step further was made instead in the direction of strengthening and rounding up of state functions of the Federation, leaving it with the problem of division of competences of the Federation and its small statelets - the cantons. Starting from the adopted solution that the Republic of Srpska has equal right to the same legal state capacity as the Federation B&H, one cannot but wonder what elements of a state could possibly be left for B&H as a whole.

The "military arrangements" of the Dayton Agreement are also among the issues which have not been coordinated with its objective, especially the role of their creators - the USA

• in them. It is probably true that Bosnia & Herzegovina in the present circumstances could not have had its army, but to leave three so powerful and until yesterday so severely opposed armies actually means leaving a very strong factor of division of B&H into (ethnic) entities. In other words, continuity of these three armies radically reduces preconditions for reintegration of B&H. It is true that the Agreement states that it is necessary to ensure "a control of armaments", "a stable military balance", but these ambiguous qualifications - which are still left to be attained in the process of consequent agreements - do not offer even a mediocre certainty that their intention would be achieved.

To what extent the mentioned conclusion is reasonable, (or not at all), is proved by the already official standpoint of the USA that this balance should be achieved "by supplementing armaments of the Federation" which they consider to be their obligation. With no doubt, something like that is puzzling and contradictory, and in view of the additional statement that the USA will not directly participate, "but coordinate such an operation of other countries", it is difficult to determine whether this is pure arrogance or insincerity. Following this course of action, none of the conflicting parties would be left without a "supplement of armaments", and the American and the world armament lobby will make a several billion-dollar worth of profit from the operation. What is certain and what arouses additional suspicion about the role of the Americans is the fact that the threshold of necessary disarmament, or disarmament which is implied by the cited qualifications from the Dayton Agreement, is far below the present level of armament of any of the three existing armies in B&H. This means that only by disarming to a certain level (which would differ in scope in each of the cases), and not by "supplementing armaments", one would act pursuant to the Agreement and achieve the balance in military forces which is indispensable to achieve peace in this space.

Further contemplation leads to conclusions that B&H simply needs demilitarization at this moment. Why? After everything that has happened, existence of an army in B&H makes sense only if it results from a decision of its joint state agencies (and not its entities) and under their full control. Only such an army would have legitimacy to defend its internationally recognized state borders and one could expect them to carry out this task successfully. However, there is not even a hint about it in the Dayton Agreement, which is obviously the result of an objective assessment that in the present circumstances there is no possibility for anything of the kind.

What may the actual function of armies of different entities actually be? Mr Clinton declared on December 10 that "each party should be capable of defending itself". One cannot by wonder: against whom? The only answer would be - against the other party! Could such contemplation fit into the very concept of the peace Agreement and the idea of the international community that B&H must remain a sovereign, territorially integral and politically independent state of its three separated constituent nations? This is too far from the only acceptable truth that peace in B&H must become sufficiently firm in order to survive departure of NATO forces. But, should the conflicting parties be defending themselves from each other, they might even succeed in defending themselves (at the cost of terrible suffering), but they will certainly not succeed in defending the state of B&H, nor peace in this space.

The task of the armies of different entities cannot be guarding of internationally recognized borders of B&H either. Neither will the army of the Republic of Srpska guard the border with Serbia, nor will the Croat Defence Council guard the border with Croatia. On the contrary, their political platforms are based on the standpoint that these borders should be deleted altogether. That these borders will never be guarded by the army of any of the other two entities is "guaranteed" not only by the very existence of the army of the entity on whose territory this border is, but also the explicit requirement of the Dayton Agreement which says that "under no conditions armed forces of any entity shall enter and remain on the territory of another entity without the approval of the administration of this entity and the Presidency of B&H".

The statement in Dayton Agreement that "all armed forces in B&H shall operate in consistency with sovereignty and territorial integrity of B&H" is intended more to soothe the conscience and sound good, than to be efficient. Because even Mr Bill Clinton himself declared several times that after a year from signing of the Agreement, the Americans would withdraw "regardless of the situation", which may encourage the belligerent forces in this space. They may understand this just as a breathing space for "supplementing armaments", although this stance inevitably makes one wonder to what extent it is in harmony with the need to successfully complete such a comprehensive and important international job.

At this moment, international military forces must necessarily be deployed at demarcation lines between the conflicting parties. But, it is of top priority to take care that these lines do not become a "Berlin wall". The solution for this is obviouly in a limited period of this operation, as a time-out which will serve to achieve balance by intensive disarmament of all the parties concerned, and to reduce (if not even eliminate) national folly which is in excess around here. After that, instead of standing "between us", the international forces may be deployed "around us". In this way they would defend inviolability of state borders of B&H, and police forces of the "parties involved" would be quite sufficient for their protection within B&H. At the same time, if all the resources and personnel potentials planned to be invested in "supplementing armaments" would be used by the USA for reestablishment of mutual trust between citizens and nations of B&H, a special additional and exceptional contribution would be made in this state to creation of conditions fit for living of human beings.

For peace and prosperity in this long-suffering country nothing is so important and beneficial as restoration of the lost mutual trust. On the contrary, should a balance between the parties in B&H be sought in "supplementing armaments", the possibility that the entire current peace process would be ruined will be significantly increased.

Prof. Dr NEDJO MILICEVIC (The author is a judge in the Constitutional Court from Sarajevo)