The Bureaucratic Gaze of International Human Rights Law

The bureaucratic gaze of international
human rights law

David Chandler

The ‘rule of law’ and politics in Bosnia

Advocates of international human rights ‘legislation’ argue that this law is particularly important to protect individuals where states are weak and societies are segmented. The breakdown of weak and fragile states and internal conflict is often viewed today through the lens of crime and human rights abuse. For example, US Newsday journalist, Roy Gutman, writing in the OSCE, Freedom and Responsibility Yearbook, states: ‘The Bosnian conflict was, in retrospect, an enormous crime against humanity, masquerading as a war’ (Gutman 2000:150). The ‘New Wars’ thesis views conflict as motivated, not by political or geo-political aims but by private aims of plunder, black-market profiteering and corruption through the manipulation of particularist regional, ethnic or nationalist identities. Led by paramilitaries, local warlords and criminal gangs, the aim of conflict is understood to be that of destabilization and the sowing of fear and hatred through ethnic cleansing and mass killing (Kaldor 1999:6–9; Shaw 1999; Duffield 2001). Once the crisis situation is seen to have human rights abuses at its heart, the solution is then held to be ‘cosmopolitan law enforcement’, or the international imposition of international human rights law (Kaldor 1999:10–11). Human rights law, enforced by neutral external administrators, is necessary as a safeguard against the potential abuses and discrimination held to be likely to arise from leaving law to ethnic majorities brought to power through formally democratic processes.

It is in this context, of concern for the working of democracy in post-conflict situations, that a new consensus of support has arisen for international protections for individual rights and the international institutionalizing of legal safeguards for human rights. The campaign for legal human rights protections is no longer the preserve of radical campaigners but is increasingly central to Western government foreign policy. Anyone attending international think-tank or Foreign Office seminars dealing with the problems of non-Western states cannot but be struck by the shift towards understanding political problems in the framework of law and law-breaking. It is not unusual to hear leading policy advisors insist that crime is the biggest problem that the world faces today. Not traditional crime or even transborder crime but ‘political’ crime. As one advisor described the new pressing problem at a recent UK government seminar, the issue we faced was: ‘the politicization of crime and the criminalization of polities’. This confluence of crime and politics was confidently held to undermine both governments and societies and to be the main cause of conflict and war in the world today.

Bosnia has been under international administration for the past nine years, during which time various approaches have been undertaken in the attempt to impose human rights structures and address the problems of the political sphere. The internationally controlled Office of the High Representative (OHR) has been responsible for the civilian administration of the Bosnian state since the 1995 Dayton peace settlement awarded the High Representative ‘final authority’ in this sphere (GFA 1995: Annex 10, Article 5). Direct international regulation was initially intended to be a temporary measure, running up to the first post-conflict elections in 1996. However, concerns over political stability and human rights protections for Bosnia’s citizens led to a two-year extension of international mandates and then to the indefinite extension of international regulation at the end of 1997 (Chandler 2000). During this period, the High Representative has been awarded extensive executive powers, which provide the authority to impose legislation by edict and to dismiss ‘obstructive’ elected politicians. For example, in 2003, eight years into transfer of control from the international community to the Bosnian people, the High Representative imposed laws against the wishes of elected representatives and dismissed elected representatives and Bosnian officials (OHR 2003a, 2003b). The increase in powers, and the creation of what some commentators see as a new ‘European Raj’ (Knaus and Martin 2003), confirms in the eyes of many international commentators, the lack of progress achieved thus far. For many analysts, the lack of political progress, and the increasingly interventionist role of the High Representative can be explained by the OHR’s focus on dealing with the nationalist political parties rather than imposing legislation despite their opposition.

This neglect of the ‘rule of law’ is held to have shaped international policy since the Dayton settlement, which created weak central Bosnian state bodies and decentralized many legislative powers to two distinct entities, the Bosniak-Croat Federation and the Serb-dominated Republika Srpska. The Democratization Policy Institute argues that: ‘The political system negotiated at Dayton by corrupt and nationalist politicians was designed to reward corrupt and nationalist politicians, thereby enticing them to end the war’ (DPI 2002:2). According to David Dlouhy, Director of the US State Department’s Office of Bosnia Implementation:

[D]uring the war, the nationalist warring parties took advantage of the breakdown in government structures to gain control of large parts of the Bosnian economy. This economic power enabled…the large mono-ethnic parties to sustain their party apparatus and exert influence at all levels of society.

(Dlouhy 1999)

For many commentators and international officials involved in Bosnia, the links between crime and politics, cemented in the black-market war economy, remain central to understanding the political sphere today (Pugh 2003). International experts argue that equal rights are denied and that the problems of ethnic division, reflected in continuing strong support for nationalist parties and the continuing problems of refugee return are the results of crime, corruption and vested interests.

At the start of the international administration it was expected that the first post-war elections would result in a rejection of the nationalist parties, seen by the international community as discredited and tainted by the crimes of war. However, the first post-war elections, held in 1996, and those succeeding it have demonstrated that the hold of these populist parties was much deeper than the international community initially foresaw. From the perspective of the international officials, Bosnian politics appeared to have been hijacked by nationalist elites who sought to sustain ethnic divisions in order to cling on to power. As an International Peace Academy 2002 conference report states:

One senior UN official involved in UN Mission in Bosnia recalled that every general and municipal election that was held in Bosnia and Herzegovina since 1996 turned out to be a ‘census of ethnicity’ instead of a contest of substantive policy issues.

(IPA 2002:9)

The international officials clearly perceived the leading parties as a threat to democracy through their use of political and criminal ‘centres of power’ in all three ethnic communities. Most international commentators have focused on the Serb and Croat communities. For example, the Democratization Policy Institute describes the Republika Srpska governing bodies in criminal terms:

In Republika Srpska, the entity government, many municipal authorities, and most political parties remain influenced and intimidated by a parallel hardline authority centred on indicted war criminal and former Bosnian Serb wartime leader Radovan Karadzic. The Karadzic network and other regional hard-line offshoots include other indicted war criminals and organized crime rings with deeply rooted connections in government.

(DPI 2002:6)

The leading Croatian political party the HDZ (Hrvatska Demokratska Zajednica— Croatian Democratic Community) is similarly dismissed as criminal activists. In 2002, Jacques Klein, then Special Representative of the UN Secretary-General and Chief of the UN Mission in Bosnia, described the HDZ as a ‘criminal elite that has enriched itself while politically and economically impoverishing its followers’ (Klein 2002a), while the Democratization Policy Institute describes the party as ‘a mafia peddling itself as a protector of the Croat nation’ (DPI 2002:6). The current international High Representative Lord Ashdown, who assumed his post in May 2002, has gone so far as to say that corruption and organized crime in Bosnia are a bigger threat to the country than nationalism (Ashdown 2002) while his then Senior Deputy High Representative, Matthias Sonn, argued that ‘corruption and nationalist political forces are interlinked’ (Sonn 2002).

In this context, the liberal approach of institution-building and elections has been dismissed as being inadequate, focusing ‘too much’ on politics. The failure of successive elections to bring ‘true democracy’ and to dent the support of nationalist parties has led the international community to attempt to achieve political change through focusing on the ‘rule of law’ and the promotion of human rights. It is argued that for democratic progress it is essential that human rights law is not made subordinate to the will of a criminalized political sphere in which the interests of the public are held to be ignored. Today, there is a general consensus that the rule of law should be prioritized. This point was stressed at the International Peace Academy high-level conference on transitional administrations, where international practitioners argued that: ‘focusing on democracy at the expense of the rule of law results in expensive democratic form without democratic substance’ (IPA 2002:9).

Echoing this view, Jacques Klein stated, in July 2002, that the popular support garnered by the nationalist parties in elections was: ‘the price to be paid for the erroneous policies of establishing a façade of democracy at the expense of a solid foundation of justice and the rule of law’ (Klein 2002b:3). For Klein, the political sphere was an unhealthy one where criminal political elites spread the ‘virus’ of nationalism which enabled them to ‘sacrifice the general interests to their personal interest’. This perceived promotion of personal or sectional interests, rather than striving for the public benefit of Bosnian society as a whole, is held to undermine democracy. The Democratization Policy Institute suggests that: ‘Giving free rein to the current powers that be in Bosnia is not “democracy” (DPI 2002:2). The US State Department bluntly argues that the task of the international community is to develop ‘true democracy where rule of law and not rule of nationalist party politics reigns’ (Dlouhy 1999). The International Crisis Group asserts that: ‘Although the rule of law does not require democratic government, democracy presupposes the rule of law’ (ICG 2002a: 1). This is also the position of the Office of the High Representative, the Senior Deputy High Representative stating: ‘Justice may be achievable without democracy, but you certainly cannot create a democracy without justice’ (Sonn 2002). The current High Representative, Lord Paddy Ashdown, has made the ‘rule of law’ his primary objective, stating in his inaugural speech in May 2002: ‘First Justice. Then Jobs. Through Reform…working with you to establish the rule of law will be my first, and my top, priority’ (Ashdown 2002).

There is now a clear consensus, not just on the point that democracy is not possible without the ‘rule of law’ but that the establishment of the rule of law necessarily means ‘legalizing’ human rights through measures which may not be formally considered to be democratic. The Democratization Policy Institute argues that: ‘Development of true democracy, to include not just representative self-rule, but also respect for human rights and good governance, demands international intervention that in the short-run may be “anti-democratic”, as were the international protectorates in post-WWII Germany and Japan’ (DPI 2002:2). As the advisor to a leading international figure in Bosnia stated at a Foreign Office seminar on human rights promotion: ‘You can’t be too liberal and think too much about democratization. You have to be an enlightened despot.’

Once the public interest is seen to lie in the hands of the external administrators then the role of elected representatives is necessarily a secondary one. Ashdown alluded to this at his inauguration: ‘I have concluded that there are two ways I can make my decisions. One is with a tape measure, measuring the precise equidistant position between three sides. The other is by doing what I think is right for the country as a whole. I prefer the second of these’ (Ashdown 2002). Ashdown argues that while political parties represent the sectional interests of the ethnic groups, it is his job to put forward the public interest, the interests of ‘all’ Bosnians. From Ashdown’s perspective, Bosnian politicians are a barrier to the universal ‘legalization’ of human rights and the pursuit of the Bosnian public interest because of their partial allegiances. He argues that the problems of Bosnia are in large part because there are too many politicians and too much ‘polities’ (Ashdown 2002).

This chapter suggests that human rights regulation through the prioritization of the rule of law above the political sphere cannot compensate for, or overcome, political problems. In fact, international policy, which seeks to marginalize the sphere of politics, institutionalizes the current ethnic divide rather than seeking to overcome it. Progress in the ‘rule of law’ has been promoted by the Office of the High Representative as demonstrating the major improvements made under international administration, despite the continued political division of the tiny state. Here it is suggested that the gap between the internationally-imposed laws and the politically-expressed will of Bosnian society, at the heart of the justification for externally-imposed human rights legislation, creates a ‘rule of law’ paradox. This paradox is drawn out below, in examples which illustrate that the attempt to privilege law above politics in fact weakens and discredits the ‘rule of law’ rather than strengthening it. Firstly, while the new laws may appear to be very impressive achievements on paper, they do not necessarily reflect or encourage an improvement in practice, and second, and more importantly, the development of the ‘rule of law’ through the external imposition of human rights legislation undermines the sphere of law itself.

The following sections will consider briefly two areas of legislation, selected on the basis of their prominence in international reports on progress in the region, in which laws, publicly justified as necessary to protect and enforce human rights, have been imposed over the opposition of Bosnian political representatives. The areas are the imposition of new constitutional changes, which have sought to marginalize the governing influence of the main nationalist political parties, and the imposition of housing legislation allowing refugees and displaced people to return to their pre-war homes.

Human rights legislation and political representation

In September 2000, the Bosnian constitutional court ruled that the general principle of political equality of the three constituent peoples should hold throughout Bosnia and both the political entities, the Bosniak-Croat Federation and the Serb-dominated Republika Srpska. This decision, which affected the entity constitutions, was pushed through by the three non-Bosnian internationally appointed judges but with the support of only the Bosnian judges representing one of the three ethnic constituencies. The two Bosniak judges supported the international judges’ opinion, but the two Bosnian Serb and two Bosnian Croat judges opposed the ruling.

Already clearly politically divisive, this general ruling on principle was then used by the international administration to radically reshape the political framework. In January 2001, the High Representative issued a decree creating two constitutional commissions, which met to discuss specific textual proposals for constitutional change, already drawn up by an international taskforce (OHR 2001a; ESI 2002:2). The Mrakovica-Sarajevo ‘Agreement on the Implementation of the Constituent Peoples’ Decision of the Constitutional Court of Bosnia and Herzegovina’ was finally imposed by the Office of the High Representative in March 2002 (OHR 2002a). Although it was signed by representatives of the United States and the European Union, the Agreement was not supported by Bosnian representatives despite its perceived constitutional importance as ‘an addendum to the Dayton Agreement’ (Bisenic 2002). The new constitution was imposed by three decrees imposing constitutional changes in the two entities and reforming the election laws. According to High Representative Wolfgang Petritsch, imposition was necessary: ‘I’m not going to allow…nationalist parties…to prevent them from taking effect. As a guarantor of the Mrakovica-Sarajevo Agreement, I simply cannot accept the continuing obstruction on the side of these nationalistic dinosaurs. I cannot allow the prospect that these…parties could hold the citizens of this country hostage’ (Petritsch 2002).

The implications for the governments of both the Bosnian entities were extensive. Section II, covering the distribution of key political posts in both entities states:

PM and Deputy Prime Ministers may not come from the same constituent people. Out of the following positions not more than 2 may be filled by representatives of any one constituent people or of the group of Others: 1) Prime Minister 2) Speaker of the House of Representatives/Republika Srpska National Assembly 3) Speaker of the House of Peoples/Council of Peoples 4) President of Supreme Court 5) President of Constitutional Court 6) Public Prosecutors. Presidents of Entities—the President shall have two Vice-Presidents coming from different constituent peoples.

(OHR 2002a:Section II)