24 April 2011

Testing the Waters, Pushing the Limit

Indian Milorad Dodik

Bosnia and Herzegovina is a land of the ridiculous, but its greatest irony is that its supposed patriots are only too happy to see foreigners exercise power in their country, knowing it will be used only against their unwilling countrymen. That leaves a man who openly states he has not a shred of feeling for BiH to act as its preeminent fighter for independence. Milorad Dodik, the president of the largest political party of the Bosnian-Herzegovian Serbs, initially toed the line and represented a great hope of the outsiders, but has since grown into a dogged anti-colonialist. He has been engaged in a tug-of-war with Bosnia's foreign tutors for several years now.

On his initiative the Assembly of Republic of Srpska recently passed a decision for a popular referendum to be held, asking the populace of Srpska to register their support or their opposition to the legal framework imposed by the High Representative in 2001 that established the Court of BiH and the Prosecutor's Office. Prior to that Bosnia and Herzegovina had no judiciary at the level of the state. Except for the Constitutional Court of BiH all judiciary institutions were found one step down, at the entity level.

The referendum will record overwhelming disagreement with the laws. Dodik vows to use that to pressure for the re-negotiation of the matter. And should that prove impossible, to refuse to comply with the Court in any way, but ask of the Assembly to declare the laws establishing the Court invalid for the territory of Repulic of Srpska. It has all been wrapped in hefty anti-colonialist rhetoric of being fed up with "the tyranny of the International Community". That subversion of the Dayton Peace Treaty and the Constitution by the High Representative must come to an end. That the representatives of the Serb people in Bosnia will no longer be blackmailed into submission or respond to threats. 

It is unclear what this will mean in practise seeing the cooperation of Srpska is hardly required for the day to day work of the Court, but it has been more than enough to have every foreigner invested in the colony up in arms about it. From the "HR/EUSR", to EU, to State Department, to PIC, to the ever present evil witch, Doris Pack and a bunch of other nobodies, all have stated their dissatisfaction in excited tones.

It seems a move whose value is mainly symbolic is quite enough to arouse the feeling of insecurity and sow panic among the internationals if it is bold enough to strike at their lack of legitimacy, and denies their right to even have a say in Bosnia in the first place. Their mantra has been that this represents an assault on the Bosnian state. Their only argument that an entity can not make pronouncements on institutions that are found at the state level.

That is true as far as that goes, but what they leave out is that the judiciary was never to be a domain of the central state in the first place. Seeing the closest thing to Bosnia's constitutional convention took place at a US Air Force base in the American Midwest the constitution of BiH bears a resemblance to the Constitution of the United States. Like it, it comes equipt with a provision stating only powers explicitly stated as being in the domain of the central state can indeed be in its domain. Nowhere are judiciary powers mentioned as such. Indeed the central state was without courts until 2001 when the then "High Representative" Wolfgang Petrisch conjured them up.

Since then the state courts have been used as a means of harassment of bothersome, but vulnerable political personalities. It is something the Croats have been the most hard hit by, having both their present and their former most influential political representatives, Dragan Čović and Ante Jelavić, hit with charges of corruption. They, like all other politicians in BiH, are widely seen as being corrupt even by their loyal constituents, but that is not to say the courts are not even more corrupt, or presented a semblance of a case at trial.

The "High Representative" does not lack for his own means of dealing with elected representatives who pose an obstacle, but they are all rather crude. It is more elegant and raises less waves to have local institutions handle such matters. These native institutions however include in their ranks foreign judges and prosecutors appointed by the "High Representative". It is the height of sophistry to declare combating a courts system under which a citizen of Bosnia and Herzegovina may, in his own land, be prosecuted by one foreigner and sentenced by another as any kind of attack on BiH.

The opposition to the Court of BiH rather represents a fight back against the project central to the internationals' civilising mission: enacting centralisation at all costs, beating into submission those who stand in the way. Like its Constitution the process of its subversion in BiH bears a superficial resemblance to the gradual centralisation in the United States, but it is in fact much more serious.

Firstly it has been more rapid. Next it is being brought on by outside interference, not an internal driving force. Lastly it is usurping the legal framework that is not just the fundamental law of the land, but an actual peace treaty that ended a civil war. Messing with the constitutional order is bad enough, usurping a peace treaty is downright insane.

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