Making Peace in Bosnia Work

Cornell International Law Journal

Volumn 30, Issue 3, 1997, Pages 788-817

  Consens, Elizabeth M ^a,b,c  

^a International Peace Academy (IPA)

^b STANFORD UNIVERSITY   (United States)

^c UNIVERSITY OF OXFORD   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0347938680     PISSN: 00108812     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (133)

1. Although other agreements and texts bear on the peace process in Bosnia, this Article focuses on the Dayton Agreement, the General Framework Agreement for Peace in Bosnia and Herzegovina, Dec. 14, 1995, Bosn.-Herz., 35 I.L.M. 75 [hereinafter Dayton Agreement].
2. Several practitioners and academics have recently called for the U.S. to cut its losses in Bosnia. See U.S. Senator Kay Bailey Hutchison, Editorial, The Bosnia Puzzle Needs a New Solution, N.Y. TIMES, Sept. 11, 1997, at A31; Henry Kissinger, Editorial, Limits to What the U.S. Can Do in Bosnia, WASH. POST, Sept. 22, 1997, at A19; John J. Mearsheimer, Editorial, The Only Exit from Bosnia, N.Y. TIMES, Oct. 7, 1997, at A2; Michael O'Hanlon, Editorial, What to Do in Bosnia?, WASH. POST, Oct. 13, 1997, at A26. For the counter argument, see Richard Holbrooke, Editorial, In Bosnia, Patience, WASH. POST, Sept. 28, 1997, at C7.
3. Several practitioners and academics have recently called for the U.S. to cut its losses in Bosnia. See U.S. Senator Kay Bailey Hutchison, Editorial, The Bosnia Puzzle Needs a New Solution, N.Y. TIMES, Sept. 11, 1997, at A31; Henry Kissinger, Editorial, Limits to What the U.S. Can Do in Bosnia, WASH. POST, Sept. 22, 1997, at A19; John J. Mearsheimer, Editorial, The Only Exit from Bosnia, N.Y. TIMES, Oct. 7, 1997, at A2; Michael O'Hanlon, Editorial, What to Do in Bosnia?, WASH. POST, Oct. 13, 1997, at A26. For the counter argument, see Richard Holbrooke, Editorial, In Bosnia, Patience, WASH. POST, Sept. 28, 1997, at C7.
4. Several practitioners and academics have recently called for the U.S. to cut its losses in Bosnia. See U.S. Senator Kay Bailey Hutchison, Editorial, The Bosnia Puzzle Needs a New Solution, N.Y. TIMES, Sept. 11, 1997, at A31; Henry Kissinger, Editorial, Limits to What the U.S. Can Do in Bosnia, WASH. POST, Sept. 22, 1997, at A19; John J. Mearsheimer, Editorial, The Only Exit from Bosnia, N.Y. TIMES, Oct. 7, 1997, at A2; Michael O'Hanlon, Editorial, What to Do in Bosnia?, WASH. POST, Oct. 13, 1997, at A26. For the counter argument, see Richard Holbrooke, Editorial, In Bosnia, Patience, WASH. POST, Sept. 28, 1997, at C7.
5. Several practitioners and academics have recently called for the U.S. to cut its losses in Bosnia. See U.S. Senator Kay Bailey Hutchison, Editorial, The Bosnia Puzzle Needs a New Solution, N.Y. TIMES, Sept. 11, 1997, at A31; Henry Kissinger, Editorial, Limits to What the U.S. Can Do in Bosnia, WASH. POST, Sept. 22, 1997, at A19; John J. Mearsheimer, Editorial, The Only Exit from Bosnia, N.Y. TIMES, Oct. 7, 1997, at A2; Michael O'Hanlon, Editorial, What to Do in Bosnia?, WASH. POST, Oct. 13, 1997, at A26. For the counter argument, see Richard Holbrooke, Editorial, In Bosnia, Patience, WASH. POST, Sept. 28, 1997, at C7.
6. Several practitioners and academics have recently called for the U.S. to cut its losses in Bosnia. See U.S. Senator Kay Bailey Hutchison, Editorial, The Bosnia Puzzle Needs a New Solution, N.Y. TIMES, Sept. 11, 1997, at A31; Henry Kissinger, Editorial, Limits to What the U.S. Can Do in Bosnia, WASH. POST, Sept. 22, 1997, at A19; John J. Mearsheimer, Editorial, The Only Exit from Bosnia, N.Y. TIMES, Oct. 7, 1997, at A2; Michael O'Hanlon, Editorial, What to Do in Bosnia?, WASH. POST, Oct. 13, 1997, at A26. For the counter argument, see Richard Holbrooke, Editorial, In Bosnia, Patience, WASH. POST, Sept. 28, 1997, at C7.
7. The Yugoslav state comprised six republics (Croatia, Serbia, Bosnia-Herzegovina, Solvenia, Montenegro and Macedonia); two semi-autonomous provinces linked to Serbia (Kosovo and Vojvodina); and six constituent nationalities (Croatian, Serbian, Slovenian, Montenegrin, Macedonian and Muslim, the last having become an official Yugoslav nationality by constitutional amendments in 1974). Long before it would have seemed plausible that Yugoslavia would literally dissolve, the political center of gravity had shifted significantly from the country's federation institution to its republics and provinces. Yugoslavia's third constitution, adopted in 1974, devolved authority along virtually every axis of institutional power: each republic acquired its own central bank, its own communist party, its own educational system, its own judiciary, and, very importantly, its own police. The only institution which still operated exclusively at the federal level was Yugoslavia's national army, though it now acquired as Commander-in-Chief, an eight-member, rotating federal Presidency. By the late 1980s, the complex balance of powers between Yugoslavia's federal institutions and its republics and provinces had become unstable and increasingly unsuited to containing the rival agendas of political leaders emerging at the republican level.
8. Serb radicals in the Krajina region of Croatia declared their own "independence" as early as August 1990, which they effectively retained until mid-1995 when the Croatian Army, then better armed and trained, retook the region, expelling virtually all of its Serb population.
9. According to the last pre-war census in 1991, Bosnia's population was 44% Muslim, 31% Serb, 17% Croat, and 8% Yugoslav and Other. See SUSAN WOODWARD, BALKAN TRAGEDY: CHAOS AND DISSOLUTION AFTER THE COLD WAR 33 (1995). Increasingly, "Bosniac" has been used to refer to non-Serb and non-Croat Bosnians, basically replacing the designation "Muslim" with a term marginally less exclusivist.
10. See Alan Riding, Europe Nods to Bosnia, Not Macedonia, N.Y. TIMES, Apr. 7, 1992, at A3.
11. Fear that these rights might disappear was not unfounded, though it was also extravagantly stoked and manipulated by Serbian and Croatian leaders. Yugoslavia operated as a complex and delicate balance of powers among its republics and constituent nationalities. Such arrangements were called into question, at least constitutionally, when a Republic became an independent state. Croat, Serb, and Muslim status as constituent nations of the Federal Republic of Yugoslavia (along with Slovene, Montenegrin, and Macedonian) did not guarantee them equal status as constituent nations of Bosnia. It did not ease concern when Izetbegovic announced that the SDA opposed national power-sharing in Bosnia in favor of one-man-one-vote, a change which favored the larger Muslim population. See LAURA SILBER & ALLAN LITTLE, YUGOSLAVIA: DEATH OF A NATION 209 (1995).
12. Hard-line Croats in Herzegovina declared their own independent Croatian Republic of Herzeg-Bosna, whose full dismantling has yet to occur.
13. See Dr. Kemal Hrelja, Review of the Economic and Social Situation in Bosnia and Herzegovina, 1986-1996, in WORKSHOP ON RECONSTRUCTION, REFORM AND ECONOMIC MANAGEMENT IN BOSNIA AND HERZEGOVINA 19, 42 (1996) (sponsored by UNDP, the U.N. Department of Development Support and Management Services and the Vienna Institute for Comparative Economic Studies).
14. See id. at 42-57. See also the World Bank reports prepared for the Second Donors' Conference for Bosnia and Herzegovina. WORLD BANK ET AL., BOSNIA AND HERZEGOVINA: TOWARDS ECONOMIC RECOVERY 10-14 (Discussion Paper No. 1, 1996); WORLD BANK ET AL., BOSNIA AND HERZEGOVINA: THE PRIORITY RECONSTRUCTION AND RECOVERY PROGRAM: THE CHALLENGES AHEAD (Discussion Paper No. 2, 1996).
15. See id. at 42-57. See also the World Bank reports prepared for the Second Donors' Conference for Bosnia and Herzegovina. WORLD BANK ET AL., BOSNIA AND HERZEGOVINA: TOWARDS ECONOMIC RECOVERY 10-14 (Discussion Paper No. 1, 1996); WORLD BANK ET AL., BOSNIA AND HERZEGOVINA: THE PRIORITY RECONSTRUCTION AND RECOVERY PROGRAM: THE CHALLENGES AHEAD (Discussion Paper No. 2, 1996).
16. A United Nations Protection Force (UNPROFOR) was established in February 1992 to facilitate cease-fire in Croatia and as a complement to ongoing international mediation efforts. UNPROFOR's mandate was subsequently extended to Bosnia and came to include responsibility for six designated "Safe Areas." The first Safe Area declared was Srebrenica. See S.C. Res. 819, U.N. SCOR, 48th Sess., ¶¶ 1-4, U.N. Doc. S/ RES/819 (1993). The safe area concept was extended to Sarajevo, Tuzla, Zepa, Gorazde, and Bihac with S.C. Res. 824, U.N. SCOR, 48th Sess., ¶¶ 3-4, U.N. Doc. S/RES/824 (1993).
17. After the first strike against a Serb ammunition depot near Pale on May 25, the response was Serb bombardment of all U.N.-designated Safe Areas except Zepa: 71 people were killed in Tuzla alone. After the second strike against the Serb depot on May 26, the response was to take close to 400 U.N. personnel hostage over the following few days. See Report of the Secretary General Pursuant to Security Council Resolutions 982 (1995) and 987 (1995), U.N. SCOR, 50th Sess., ¶¶ 10-14, U.N. Doc. S/1995/444 (1995). See also Stephen Engelberg & Eric Schmitt, Air Raids and U.N. Hostages Mark a Turn in Bosnia's War, N.Y. TIMES, July 16, 1995, at A1.
18. After the first strike against a Serb ammunition depot near Pale on May 25, the response was Serb bombardment of all U.N.-designated Safe Areas except Zepa: 71 people were killed in Tuzla alone. After the second strike against the Serb depot on May 26, the response was to take close to 400 U.N. personnel hostage over the following few days. See Report of the Secretary General Pursuant to Security Council Resolutions 982 (1995) and 987 (1995), U.N. SCOR, 50th Sess., ¶¶ 10-14, U.N. Doc. S/1995/444 (1995). See also Stephen Engelberg & Eric Schmitt, Air Raids and U.N. Hostages Mark a Turn in Bosnia's War, N.Y. TIMES, July 16, 1995, at A1.
19. Srebrenica fell on July 12, six days after the Serb assault began. Zepa fell on July 25. The assault on Srebrenica stands as one of the most atrocious events of the war. Between 5,000 and 7,000 Muslim men are estimated to have been slaughtered during the week in July in which the town was taken by Serb forces. Beyond the obvious responsibility borne by Serb authorities for this blood-letting, many others have been accused of contributory culpability: the commander of local Bosnian forces who never arrived to help defend the town, the U.N. authorities who never managed to order the close air support when it was desperately needed, and the U.S. authorities who are alleged to have known in advance but to have done nothing to prevent the assault on the town. On the U.N. role, see generally DAVID ROHDE, ENDGAME: THE BETRAYAL AND FALL OF SREBRENICA, EUROPE'S WORST MASSACRE SINCE WORLD WAR II (1997). On what U.S. authorities may have known, see Charles Lane & Thom Shanker, Bosnia: What the CIA Didn't Tell Us, N.Y. REV. BOOKS 8, 14 (1996).
20. Srebrenica fell on July 12, six days after the Serb assault began. Zepa fell on July 25. The assault on Srebrenica stands as one of the most atrocious events of the war. Between 5,000 and 7,000 Muslim men are estimated to have been slaughtered during the week in July in which the town was taken by Serb forces. Beyond the obvious responsibility borne by Serb authorities for this blood-letting, many others have been accused of contributory culpability: the commander of local Bosnian forces who never arrived to help defend the town, the U.N. authorities who never managed to order the close air support when it was desperately needed, and the U.S. authorities who are alleged to have known in advance but to have done nothing to prevent the assault on the town. On the U.N. role, see generally DAVID ROHDE, ENDGAME: THE BETRAYAL AND FALL OF SREBRENICA, EUROPE'S WORST MASSACRE SINCE WORLD WAR II (1997). On what U.S. authorities may have known, see Charles Lane & Thom Shanker, Bosnia: What the CIA Didn't Tell Us, N.Y. REV. BOOKS 8, 14 (1996).
21. See SILBER & LITTLE, supra note 7, at 360. When defense of Gorazde was discussed in London, there was no mention of Zepa, which was under attack at the time.
22. After U.S. Secretary of State James Baker traveled to Belgrade and Zagreb on June 21, 1991 in an eleventh-hour effort to defuse the crisis over Croatia and Slovenia, he explained the absence of U.S. interests in Yugoslavia with the phrase: "We don't have a dog in this fight." See SILBER & LITTLE, supra note 7, at 201.
23. The full throttle confrontation that began in April 1993 has been partially attributed to the Bosnian government's rejection of the Vance-Owen Peace Plan, the terms of which were particularly favorable to Bosnian Croats. See, e.g., Misha Glenny, Yugoslavia: The Great Fall, N.Y. REV. BOOKS 56, 63 (1995). Though a contributing cause, active Bosniac-Croat conflict began months before Vance-Owen was revealed and had in fact been presaged by mutual hostilities from the time Yugoslavia began to disintegrate. Particularly informative on this subject is Chapter 22 in SILBER & LITTLE, supra note 7, at 291-302.
24. This was not just about Bosnia, since Serbs in Croatia still held the territory that they had gained in 1991-92 in Krajina and Western Slavonia, where the autonomist Serb rebellion began in 1990, and in Eastern Slavonia.
25. U.S. and European mediators were advocating as a basis for settlement that Bosniac and Croat forces would hold 51% of Bosnia's territory, and Serb forces the remaining 49%. The 51:49 formula had been floated by Contact Group negotiators in July 1994 but was rejected at the time. See DAVID OWEN, BALKAN ODYSSEY 279-86 (1995).
26. The U.N. Protected Areas (UNPAs), all in Croatia, were part of UNPROFOR's original mandate and distinct from the Safe Areas later established in Bosnia.
27. Another 50,000 soldiers fled as well. UNHCR Special Envoy Søren Jessen-Petersen, Remarks at a Joint UNHCR-IPA Conference entitled Healing the Wounds: Refugees, Reconstruction and Reconciliation (June 30-July 1, 1996).
28. OWEN, supra note 18, at 335.
29. See S.C. Res. 713, U.N. SCOR, 46th Sess., ¶ 6, U.N. Doc. S/RES/713 (1991). In 1993, the Council drafted a resolution that was never adopted, which called for lifting the embargo against the Bosnian government on the grounds that it violated Bosnia's inherent right of self-defense. See U.N. SCOR, 48th Sess., U.N. Doc. S/25997 (1993). U.S. Congressional advocates of lifting the arms embargo also based much of their case on Bosnia's right to defend itself.
30. See S.C. Res. 836, U.N. SCOR, 48th Sess., U.N. Doc. S/RES/836 (1993) (authorizing UNPROFOR and regional organizations to use force to defend the safe havens); S.C. Res. 844, U.N. SCOR, 48th Sess., U.N. Doc. S/RES/844 (1993) (authorizing the military reinforcement of UNPROFOR).
31. See, for example, OWEN, supra note 18, at 331, describing the situation at the end of August 1995: For the first time since the autumn of 1992 UNPROFOR was no longer spread out across the whole of Bosnia-Herzegovina and vulnerable to Bosnian Serb retaliation and hostage-taking. UNPROFOR was out of Zepa, Srebrenica and Gorazde. Bihac was now safe. There were no significant U.N. forces in Serb controlled areas anywhere in Bosnia-Herzegovina. . . . It was inevitable, therefore, that the U.N. and NATO would take action against the Bosnian Serbs for the mortar bomb attack, which was a flagrant breach of the heavy weapons exclusion zone in Sarajevo. Id.
32. The tension underlying this compromise meant that the final political outcome for Bosnia remained fundamentally uncertain, as it still does. Susan L. Woodward was an early and outspoken commentator on this issue of Dayton's open-endedness. See SUSAN L. WOODWARD, IMPLEMENTING PEACE IN BOSNIA AND HERZEGOVINA: A POST-DAYTON PRIMER AND MEMORANDUM OF WARNING 10-13 (Brookings Discussion Papers, 1996); Susan L. Woodward, America's Bosnia Policy: The Work Ahead, POLICY BRIEF (Brookings Institution Policy Brief No. 2, 1996). In this, the Dayton agreement differed qualitatively from the other peace accord reached that fall between Croatia and Serbia concerning the final status of Eastern Slavonia. See Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium, U.N. GAOR, 50th Sess., Agenda Item 92, Annex, U.N. Doc. S/1995/951 (1995).
33. The tension underlying this compromise meant that the final political outcome for Bosnia remained fundamentally uncertain, as it still does. Susan L. Woodward was an early and outspoken commentator on this issue of Dayton's open-endedness. See SUSAN L. WOODWARD, IMPLEMENTING PEACE IN BOSNIA AND HERZEGOVINA: A POST-DAYTON PRIMER AND MEMORANDUM OF WARNING 10-13 (Brookings Discussion Papers, 1996); Susan L. Woodward, America's Bosnia Policy: The Work Ahead, POLICY BRIEF (Brookings Institution Policy Brief No. 2, 1996). In this, the Dayton agreement differed qualitatively from the other peace accord reached that fall between Croatia and Serbia concerning the final status of Eastern Slavonia. See Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium, U.N. GAOR, 50th Sess., Agenda Item 92, Annex, U.N. Doc. S/1995/951 (1995).
34. The tension underlying this compromise meant that the final political outcome for Bosnia remained fundamentally uncertain, as it still does. Susan L. Woodward was an early and outspoken commentator on this issue of Dayton's open-endedness. See SUSAN L. WOODWARD, IMPLEMENTING PEACE IN BOSNIA AND HERZEGOVINA: A POST-DAYTON PRIMER AND MEMORANDUM OF WARNING 10-13 (Brookings Discussion Papers, 1996); Susan L. Woodward, America's Bosnia Policy: The Work Ahead, POLICY BRIEF (Brookings Institution Policy Brief No. 2, 1996). In this, the Dayton agreement differed qualitatively from the other peace accord reached that fall between Croatia and Serbia concerning the final status of Eastern Slavonia. See Basic Agreement on the Region of Eastern Slavonia, Baranja and Western Sirmium, U.N. GAOR, 50th Sess., Agenda Item 92, Annex, U.N. Doc. S/1995/951 (1995).
35. Dayton Agreement, supra note 1, Annex 4, 35 I.L.M. at 117-28.
36. Id. Annex 3, arts. I-II, 35 I.L.M. at 115.
37. Id. art. III, ¶ 2(b), 35 I.L.M. at 115.
38. Id. art. I, 35 I.L.M. at 115; Id. Attachment to Annex 3 on Elections, 35 I.L.M. at 117.
39. Or, September 15, 1996. Id. Annex 3, art. II, ¶ 4, 35 I.L.M. at 115.
40. See generally id. Annexes 1-A, 1-B, 2, 35 I.L.M. at 91-114.
41. Id. Annex 1-A, arts. III-V, art. VI, ¶ 9(b)(2), art. IX, 35 I.L.M. at 93-98; Id. Annex 1-B, arts. II-IV, 35 I.L.M. at 109-10.
42. IFOR was a NATO-led force, under the authority and command of the North Atlantic Council, though it included troops from non-NATO members.
43. Parties are obliged not to "threaten or use force against the other Entity," or engage in "offensive operations," which is defined as "projecting forces or fire forward of a Party's own lines." Dayton Agreement, supra note 1, Annex 1-A, art. I, ¶ 2(a), art. II, ¶ 1, 35 I.L.M. at 92-93.
44. See id. art. II, 35 I.L.M. at 92-93.
45. Id. ¶ 1, 35 I.L.M. at 93.
46. Id. ¶ 3, 35 I.L.M. at 93.
47. Id. (emphasis added). This phrase repeats identically the language in Bosnia's new Constitution. Id. Annex 4, art. III, ¶ 2(c), 35 I.L.M. at 120.
48. Id. Annex 1-A, art. II, ¶¶ 1-4, 35 I.L.M. at 92-93. The General Framework Agreement refers explicitly to "investigation and prosecution of war crimes and other violations of international humanitarian law." Dayton Agreement, supra note 1, GFA, art. IX, 35 I.L.M. at 90.
49. Id. art. VI, ¶ 3(c), 35 I.L.M. at 97.
50. Id. art. VI, ¶ 3(d), 35 I.L.M. at 97 (emphasis added).
51. Id. ¶ 4, 35 I.L.M. at 97.
52. Id. ¶ 5, 35 I.L.M, at 97 (emphasis added).
53. Or, December 15, 1996. Id. Annex 2, art. V, ¶ 5, 35 I.L.M. at 113.
54. Id. Annex 11, 35 I.L.M. at 149-52.
55. See generally id. Annex 4, 35 I.L.M. at 117-28; id. Annex 6, 35 I.L.M. at 130-36.
56. See generally id. Annex 4, art. II, 35 I.L.M. at 119-20 (covering "Human Rights and Fundamental Freedoms").
57. See id. Annex 4, Annex I, 35 I.L.M. at 126.
58. Id. Annex 6, 35 I.L.M. at 130-36.
59. Id. arts. II-XIV, 35 I.L.M. at 131-35.
60. Id. Annex 7, 35 I.L.M. at 136-41.
61. Id. art. 1, ¶ 1, 35 I.L.M. at 137.
62. See id. ¶¶ 1-3, 35 I.L.M. at 137 (covering the basic obligations described).
63. See also id. art. VII, 35 I.L.M. at 138 (establishing the Commission for Displaced Persons and Refugees).
64. During its operation, IFOR troop strength ranged near 50,000; to date, SFOR troop strength has ranged between 31,000 and 36,500. Figures are cited in the monthly reports submitted by NATO to the Security Council. See, e.g., Javier Solana, Eleventh Report to the United Nations Security Council on IFOR Operations, U.N. SCOR, 51st Sess., U.N.Doc. S/1996/880 (1996); Javier Solana, Monthly Report to the United Nations Security Council on SFOR Operations, U.N. SCOR, 52d Sess, ¶ 1, U.N.Doc. S/1997/718 (1997).
65. During its operation, IFOR troop strength ranged near 50,000; to date, SFOR troop strength has ranged between 31,000 and 36,500. Figures are cited in the monthly reports submitted by NATO to the Security Council. See, e.g., Javier Solana, Eleventh Report to the United Nations Security Council on IFOR Operations, U.N. SCOR, 51st Sess., U.N.Doc. S/1996/880 (1996); Javier Solana, Monthly Report to the United Nations Security Council on SFOR Operations, U.N. SCOR, 52d Sess, ¶ 1, U.N.Doc. S/1997/718 (1997).
66. See Report of the Secretary-General on the United Nations Mission in Bosnia and Herzegovina (UNMIBH), U.N. SCOR, 52d Sess., ¶ 3, U.N. Doc. S/1997/468 (1997).
67. This job was subsequently transferred to the United Nations and the Office of the High Representative in late 1996. Cf. Dublin European Council - 13 and 14 December 1996 - Presidency Conclusions, RAPID, Dec. 14, 1996, Annex III, available in LEXIS, News Library, RAPID File.
68. This job was subsequently transferred to the United Nations and the Office of the High Representative in late 1996. Cf. Dublin European Council - 13 and 14 December 1996 - Presidency Conclusions, RAPID, Dec. 14, 1996, Annex III, available in LEXIS, News Library, RAPID File.
69. "The High Representative is the final authority in theater regarding interpretation of this Agreement on the civilian implementation of the peace settlement." Dayton Agreement, supra note 1, Annex 10, art. V, 35 I.L.M. at 148, which is analogous to the IFOR Commander's being named the "final authority in theatre regarding interpretation of this agreement on the military aspects of the peace settlement." Id. Annex 1-A, art. XII, 35 I.L.M. at 100.
70. Conclusions of the Peace Implementation Conference Held at Lancaster House, London, on 8 and 9 December 1995, U.N. SCOR, 50th Sess., ¶ 3, U.N. Doc. S/1995/1029 (1995). The PIC was created out of the remnants of the International Conference on the Former Yugoslavia that had been in operation since August 1991.
71. Other civilian provisions have deadlines but, in practice, have been much less consequential, largely because they are more technical or more easily obstructed. One example is the obligation to bring existing constitutions into conformity with the Dayton Constitution. See Dayton Agreement, supra note 1, Annex 4, art. XII, ¶ 2, 35 I.L.M. at 125.
72. Most scholars of civil war and its termination agree that ending such conflicts by negotiated compromise instead of victory by one side is harder both to accomplish-of 57 civil wars begun and ended between 1945 and 1993, one-quarter ended with negotiated settlement, or fourteen compared to die forty-three wars which ended with military victory - and to sustain - civil war resumed in 50% of the cases where war ended via negotiation, compared to only 15% where war ended in one side's victory. See Roy Licklider, The Consequences of Negotiated Settlements in Civil Wars, 1945-1993, 89 AM. POL. SCI. REV. 681, 684-85 (1995).
73. Hutchison, for instance, calls on Clinton to "reconvene die Dayton parties to reassess the accords." Hutchison, supra note 2, at A31.
74. On the challenge of implementing peace agreements after civil wars, see Stephen John Stedman & Donald Rothchild, Peace Operations: From Short-Term to Long-Term Commitment, INT'L PEACEKEEPING, Summer 1996, at 17 (Jeremy Ginifer ed.).
75. This is not the place to offer a full review of Dayton implementation, and several first-rate assessments already exist. Some of the best work has been done by the International Crisis Group (ICG) in Sarajevo, which has produced over thirty substantial reports on major aspects of implementation since its work in Bosnia began in early 1996. See generally ICG Crisis web (visited Nov. 6, 1997) 〈http://www.intl-crisis-group.org〉.
76. See infra Part IV, Section B.
77. Their functioning has been repeatedly obstructed from different sides, particularly Serb and Croat, over everything from timing of meetings to location. Just recently in October 1997, the Council of Ministers stalled over die question of a permanent location for their meetings.
78. The Office of the High Representative especially deserves credit, as it has worked particularly hard on the issue of getting joint institutions up and running.
79. The phrases "majority/minority areas" or "majority/minority return" are shorthand to describe return of individuals to areas where they belong to the majority national group or where they are in the minority.
80. UNITED NATIONS, HIGH COMMISSION FOR REFUGEES, HUMANITARIAN ISSUES WORKING GROUP, BOSNIA AND HERZEGOVINA: REPATRIATION AND RETURN OPERATION 1997, ¶ 40, U.N. Doc. HIWG/97/2 (1997) [hereinafter UNHCR REPORT].
81. Interview with U.N. Civil Affairs Officer, in Sarajevo (Nov. 1996).
82. See UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, EXECUTIVE COMMITTEE OF THE HIGH COMMISSIONER'S PROGRAMME, UPDATE ON REGIONAL DEVELOPMENTS IN THE FORMER YUGOSLAVIA, ¶ 3, U.N. Doc. EC/47/SC/CRP.18 (1997). The infamous burning of the suburbs began in early March 1997 in anticipation of their transfer to Federation authority. See, e.g., Dan De Luce, Fires Burn in Lawless Sarajevo Suburb, REUTERS EUR. COMMUNITY REP., Mar. 9, 1996, available in LEXIS, News Library, Wires File; Chris Hedges, Sarajevo District Burns, N.Y. TIMES, Mar. 18, 1996, at A6.
83. See UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, EXECUTIVE COMMITTEE OF THE HIGH COMMISSIONER'S PROGRAMME, UPDATE ON REGIONAL DEVELOPMENTS IN THE FORMER YUGOSLAVIA, ¶ 3, U.N. Doc. EC/47/SC/CRP.18 (1997). The infamous burning of the suburbs began in early March 1997 in anticipation of their transfer to Federation authority. See, e.g., Dan De Luce, Fires Burn in Lawless Sarajevo Suburb, REUTERS EUR. COMMUNITY REP., Mar. 9, 1996, available in LEXIS, News Library, Wires File; Chris Hedges, Sarajevo District Burns, N.Y. TIMES, Mar. 18, 1996, at A6.
84. See UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, EXECUTIVE COMMITTEE OF THE HIGH COMMISSIONER'S PROGRAMME, UPDATE ON REGIONAL DEVELOPMENTS IN THE FORMER YUGOSLAVIA, ¶ 3, U.N. Doc. EC/47/SC/CRP.18 (1997). The infamous burning of the suburbs began in early March 1997 in anticipation of their transfer to Federation authority. See, e.g., Dan De Luce, Fires Burn in Lawless Sarajevo Suburb, REUTERS EUR. COMMUNITY REP., Mar. 9, 1996, available in LEXIS, News Library, Wires File; Chris Hedges, Sarajevo District Burns, N.Y. TIMES, Mar. 18, 1996, at A6.
85. See UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, OFFICE OF THE SPECIAL ENVOY, INFORMATION NOTES, at v (May 1996). See also Update: Non-Compliance with the Dayton Accords, 8 HUMAN RIGHTS WATCH/HELSINKI REPORT 5 (1996).
86. See UNITED NATIONS HIGH COMMISSIONER FOR REFUGEES, OFFICE OF THE SPECIAL ENVOY, INFORMATION NOTES, at v (May 1996). See also Update: Non-Compliance with the Dayton Accords, 8 HUMAN RIGHTS WATCH/HELSINKI REPORT 5 (1996).
87. See Report of the Special Rapporteur on Former Yugoslavia, U.N. SCOR, 52d Sess., U.N. Doc. E/CN.4/1997/56 (1997).
88. See Office of the High Representative, BULL. No. 22, ¶ 9, (Oct. 24, 1996) 〈http:// www.ohr.int/bulletins/b961024.htm〉.
89. The Drvar incident was repeated almost identically in May 1997, when twenty-four houses were set ablaze following a visit from an international mediator who called for Serbs to be able to return. See, e.g., Patrick Moore, Croats Block Serb Refugees from Returning Home, OMRI DAILY DIGEST, (Open Media Research Institute, Prague, Czech Republic), Oct. 15, 1996, at 1. See also House Burnings: Obstruction of the Right to Return to Drvar, ICG BOSNIA REP. No. 24 (Int'l Crisis Group, London, U.K.), June 16, 1997, at 1.
90. The Drvar incident was repeated almost identically in May 1997, when twenty-four houses were set ablaze following a visit from an international mediator who called for Serbs to be able to return. See, e.g., Patrick Moore, Croats Block Serb Refugees from Returning Home, OMRI DAILY DIGEST, (Open Media Research Institute, Prague, Czech Republic), Oct. 15, 1996, at 1. See also House Burnings: Obstruction of the Right to Return to Drvar, ICG BOSNIA REP. No. 24 (Int'l Crisis Group, London, U.K.), June 16, 1997, at 1.
91. See, e.g., Going Nowhere Fast: Refugees and Internally Displaced Persons in Bosnia and Herzegovina, ICG BOSNIA REP. No. 23 (Int'l Crisis Group, London, U.K.), May 1, 1997, at 43.
92. It should be made plain that all criticism of the NATO-led forces in Bosnia is directed at NATO's political leadership, not at the force commanders or troops on the ground who operate within a particularly tight chain of command that gives them little interpretive leeway in fulfilling their mandate.
93. Having been established under Chapter VII of the U.N. Charter, the Dayton Agreement reiterates on several counts IFOR's authority to use any means necessary to implement their mandate. See supra notes 41-43 and accompanying text.
94. Dayton Agreement, supra note 1, Annex 1-A, art. VI, ¶ 3, 35 I.L.M. at 97.
95. Among other things, this led NATO governments to create the awkward distinction between "mission creep" and "mission evolution," in order to explain the extension of their mandate under SFOR.
96. Remarkably, the incident was caught on film. For official reports on the incident by IPTF, the Office of the High Representative, and the Bosnian government, see, for example, International Police Task Force, U.N. SCOR, 52d Sess., Annexes 1-2, U.N. Doc. S/1997/204 (1997); Letter dated 7 March 1997 from the Principal Deputy High Representative for the Implementation of the Peace Agreement on Bosnia and Herzegovinia addressed to the Secretary-General, U.N. SCOR, 52d Sess., U.N. Doc. S/1997/201 (1997); Letter dated 24 February 1997 from the Principal Deputy High Representative addressed to the Chair of the Presidency and a Member of the Presidency of Bosnia and Herzegovinia, U.N. SCOR, 52d Sess., U.N. Doc. S/1997/183 (1997); International Police Task Force, Mostar: Human Rights and Security Situation, 1 January - 15 February 1997, U.N. SCOR, 52d Sess., U.N. Doc. S/1997/351 (1997).
97. Remarkably, the incident was caught on film. For official reports on the incident by IPTF, the Office of the High Representative, and the Bosnian government, see, for example, International Police Task Force, U.N. SCOR, 52d Sess., Annexes 1-2, U.N. Doc. S/1997/204 (1997); Letter dated 7 March 1997 from the Principal Deputy High Representative for the Implementation of the Peace Agreement on Bosnia and Herzegovinia addressed to the Secretary-General, U.N. SCOR, 52d Sess., U.N. Doc. S/1997/201 (1997); Letter dated 24 February 1997 from the Principal Deputy High Representative addressed to the Chair of the Presidency and a Member of the Presidency of Bosnia and Herzegovinia, U.N. SCOR, 52d Sess., U.N. Doc. S/1997/183 (1997); International Police Task Force, Mostar: Human Rights and Security Situation, 1 January - 15 February 1997, U.N. SCOR, 52d Sess., U.N. Doc. S/1997/351 (1997).
98. Remarkably, the incident was caught on film. For official reports on the incident by IPTF, the Office of the High Representative, and the Bosnian government, see, for example, International Police Task Force, U.N. SCOR, 52d Sess., Annexes 1-2, U.N. Doc. S/1997/204 (1997); Letter dated 7 March 1997 from the Principal Deputy High Representative for the Implementation of the Peace Agreement on Bosnia and Herzegovinia addressed to the Secretary-General, U.N. SCOR, 52d Sess., U.N. Doc. S/1997/201 (1997); Letter dated 24 February 1997 from the Principal Deputy High Representative addressed to the Chair of the Presidency and a Member of the Presidency of Bosnia and Herzegovinia, U.N. SCOR, 52d Sess., U.N. Doc. S/1997/183 (1997); International Police Task Force, Mostar: Human Rights and Security Situation, 1 January - 15 February 1997, U.N. SCOR, 52d Sess., U.N. Doc. S/1997/351 (1997).
99. Remarkably, the incident was caught on film. For official reports on the incident by IPTF, the Office of the High Representative, and the Bosnian government, see, for example, International Police Task Force, U.N. SCOR, 52d Sess., Annexes 1-2, U.N. Doc. S/1997/204 (1997); Letter dated 7 March 1997 from the Principal Deputy High Representative for the Implementation of the Peace Agreement on Bosnia and Herzegovinia addressed to the Secretary-General, U.N. SCOR, 52d Sess., U.N. Doc. S/1997/201 (1997); Letter dated 24 February 1997 from the Principal Deputy High Representative addressed to the Chair of the Presidency and a Member of the Presidency of Bosnia and Herzegovinia, U.N. SCOR, 52d Sess., U.N. Doc. S/1997/183 (1997); International Police Task Force, Mostar: Human Rights and Security Situation, 1 January - 15 February 1997, U.N. SCOR, 52d Sess., U.N. Doc. S/1997/351 (1997).
100. Conclusions Reached at Sintra, U.N. SCOR, 52d Sess., ¶ 55, U.N. Doc. S/1997/ 434 (1997). Several months earlier, recognition that police were the primary abusers of human rights led to a new authorization in December 1996 for IPTF to conduct independent investigations. [I]t has become apparent that most of the violations of human rights which occur in Bosnia and Herzegovina (by some estimates as many as 70 per cent) are the work of the police forces of the Entities themselves. This creates the need for independent investigation of such cases. It was therefore proposed by the United Nations at the second Peace Implementation Conference that this responsibility should be entrusted to IPTF, a proposal which attracted widespread support and was incorporated in the Conclusions of the London Conference. Report of the Secretary-General, U.N. SCOR, 51st Sess., ¶ 15, U.N. Doc. S/1996/1017 (1996).
101. Conclusions Reached at Sintra, U.N. SCOR, 52d Sess., ¶ 55, U.N. Doc. S/1997/ 434 (1997). Several months earlier, recognition that police were the primary abusers of human rights led to a new authorization in December 1996 for IPTF to conduct independent investigations. [I]t has become apparent that most of the violations of human rights which occur in Bosnia and Herzegovina (by some estimates as many as 70 per cent) are the work of the police forces of the Entities themselves. This creates the need for independent investigation of such cases. It was therefore proposed by the United Nations at the second Peace Implementation Conference that this responsibility should be entrusted to IPTF, a proposal which attracted widespread support and was incorporated in the Conclusions of the London Conference. Report of the Secretary-General, U.N. SCOR, 51st Sess., ¶ 15, U.N. Doc. S/1996/1017 (1996).
102. Both men were based in the northwestern town of Prijedor and had been members of the town's "Crisis Committee," established in 1992 to facilitate takeover by Serb forces. Milan Kovacevic, Director of Prijedor Hospital at the time of his arrest, and Simo Drljaca, who was killed in the British operation, are both accused of genocide, an indictment so far leveled at only five others. Some of the most notorious crimes of the war occurred in Prijedor, where over 52,000 non-Serbs were either killed or expelled. See Mirko Klarin, Kovacevic's Arrest and Indictment, TRIBUNAL UPDATE 36: LAST WEEK IN THE HAGUE (JULY 7-12, 1997), (Institute for War and Peace Reporting, Brussels, Belgium), July 16, 1997, at 1-3. For coverage of Prijedor's key figures, see also Bosnia and Herzegovina, The Unindicted Reaping the Rewards of "Ethnic Cleansing," 9 HUM. RTS. WATCH/ HELSINKI 17-22 (1997), and the extensive documentation in the Report of the U.N. Commission of Experts.
103. Both men were based in the northwestern town of Prijedor and had been members of the town's "Crisis Committee," established in 1992 to facilitate takeover by Serb forces. Milan Kovacevic, Director of Prijedor Hospital at the time of his arrest, and Simo Drljaca, who was killed in the British operation, are both accused of genocide, an indictment so far leveled at only five others. Some of the most notorious crimes of the war occurred in Prijedor, where over 52,000 non-Serbs were either killed or expelled. See Mirko Klarin, Kovacevic's Arrest and Indictment, TRIBUNAL UPDATE 36: LAST WEEK IN THE HAGUE (JULY 7-12, 1997), (Institute for War and Peace Reporting, Brussels, Belgium), July 16, 1997, at 1-3. For coverage of Prijedor's key figures, see also Bosnia and Herzegovina, The Unindicted Reaping the Rewards of "Ethnic Cleansing," 9 HUM. RTS. WATCH/ HELSINKI 17-22 (1997), and the extensive documentation in the Report of the U.N. Commission of Experts.
104. Representative of this debate are: Misha Glenny, Decision Time in Bosnia, N.Y. TIMES, Sept. 8, 1996, at D2; Stephen S. Rosenfeld, Sticking to the Dayton Accords, WASH. POST, June 14, 1996, at A25; Morton I. Abramowitz, Bosnia: The Farce of Premature Elections, WASH. POST, May 24, 1996, at A27.
105. Representative of this debate are: Misha Glenny, Decision Time in Bosnia, N.Y. TIMES, Sept. 8, 1996, at D2; Stephen S. Rosenfeld, Sticking to the Dayton Accords, WASH. POST, June 14, 1996, at A25; Morton I. Abramowitz, Bosnia: The Farce of Premature Elections, WASH. POST, May 24, 1996, at A27.
106. Representative of this debate are: Misha Glenny, Decision Time in Bosnia, N.Y. TIMES, Sept. 8, 1996, at D2; Stephen S. Rosenfeld, Sticking to the Dayton Accords, WASH. POST, June 14, 1996, at A25; Morton I. Abramowitz, Bosnia: The Farce of Premature Elections, WASH. POST, May 24, 1996, at A27.
107. See Glenny, supra note 84, at D2. Glenny writes: Editorial writers have joined forces with such influential commentators as the financier and philanthropist George Soros and former Prime Minister Haris Silajdzic of Bosnia. All say roughly the same thing: that holding the elections will guarantee that Humpty remains dismembered and that the results of ethnic cleansing will be sanctioned by what is a bogus democratic gesture. Id.
108. This is not terribly surprising since registration for over 800,000 refugees living in dozens of host countries began just three months before the elections.
109. See generally Elections in Bosnia and Herzegovina, ICG BOSNIA REP. No. 16 (Int'l Crisis Group, London, U.K.), Sept. 22, 1996 (documenting these and other flaws in the elections).
110. U.S. Special Envoy Richard Holbrooke brokered a deal on July 18, 1996, in which Radovan Karadzic agreed to step down as President of the Republika Srpska and refrain from public political activities. He nonetheless remained an active figure behind the scenes, as he does in a more beleaguered form today.
111. The most widely reported incident was the physical attack on Haris Silajdzic, Bosnia's war-time Foreign Minister (then Prime Minister). As candidate for a multinational party, he was attacked on June 15, 1996, by a gang carrying SDA flags in Cazin. See Jovan Kovacic, Assault on Bosnian Leader Highlights Tension, REUTERS WORLD SERVICE, June 16, 1996, available in LEXIS, News Library, Reuwld File.
112. See supra Part IV, Section A.
113. "Vehicles bearing the license plates of the other entity, or the other party in the Federation, are regularly stopped and harassed by the local police, thereby preventing the population from exercising its right to move freely around the country." Report of the Secretary-General on the UNMIBH, U.N. SCOR, 52d Sess., ¶¶ 5-6, U.N. Doc. S/1997/ 468 (1997).
114. Still, license plates display the red-checkered Croatian shield in Croat areas, the blue-and-gold fleur-de-lis in Bosniac areas, and Cyrillic letters and the orthodox cross in Serb territory.
115. Until late September 1997, one could not call across Entity lines. Even from outside the country, one had to dial Republika Srpska via Serbia and Croat parts of the Federation via Croatia.
116. The Croatian kuna, the Yugoslav dinar, and the Bosnian dinar, although deutsche marks were welcome most everywhere.
117. Latin and Cyrillic.
118. Serbo-Croatian always had a Serbian and a Croatian variant and two alphabets. Croatia's early reassertion of national enthusiasm - pre-independence - involved resurrecting old Croatian vocabulary to distinguish its language from its more Balkan cousin. Serbs have similarly reinforced historical differences that distinguish the variants. Bosniacs, in turn, who could hardly be expected to speak "Serbian" or "Croatian," have begun to incorporate Turkic and Arabic vocabulary.
119. Interview with Svjetlana Derajic, International Council of Voluntary Agencies, in Sarajevo (Nov. 1996); interview with Peggy L. Hicks, Human Rights Officer, Office of the High Representative, in Sarajevo (Nov. 1996); interview with Ms. Julia Demichelis, in Washington, D.C. (Oct. 31, 1997). See also Lee Hockstader, In Bosnia, Classes Open on School Segregation, WASH. POST, Oct. 19, 1997, at A20.
120. Of this total, 88,039 persons were refugees, see UNCHR REPORT, supra note 69, Annex I, and 164,217 persons were internally displaced, see id. at 11, tbl. 6.
121. See Office of the High Representative, BULL. No. 36 (Feb. 11, 1997) 〈http:// www.ohr.int/bulletins/b970211.htm〉.
122. Among internally displaced persons, for example, 94% returned to majority areas. See UNHCR REPORT, supra note 69, at 11, tbl. 6.
123. Office of the High Representative, Report of the High Representative for Implementation of the Bosnian Peace Agreement to the Secretary General of the United Nations, ¶ 61, (Oct. 16, 1997) 〈http://www.ohr.int/reports/r971016a.htm〉.
124. The numbers of Bosnians still without a durable solution are daunting: 815,000 refugees outside the country, and roughly 866,000 displaced internally within it. Among the refugees, UNHCR estimates that over half originate from areas where they would now be a minority, underscoring the importance "for rapid progress in minority returns." See UNHCR REPORT, supra note 69, ¶¶ 17, 22.
125. See generally Office of the High Representative, Political Declaration from Ministerial Meeting of the Steering Board of Peace Implementation Council, U.N. SCOR, 52d Sess., Annex, U.N. Doc. S/1997/434 (1997). The deadline for car registration was set at January 1998. The deadline for telephones, set at mid-July 1997, passed without progress; however, by September, some telephone communication across entity lines became possible for the first time since the war had ended. It is extremely limited, however, allowing only for Sarajevo to place calls to Banja Luka, not reliably vice versa, and not broadened beyond these major cities.
126. "The High Representative has the right to curtail or suspect any media network or programme whose output is in persistent and blatant contravention of either the spirit or letter of the Peace Agreement." Id. ¶ 70.
127. Interviews with representatives of UNHCR, U.N. Civil Affairs, IPTF, Office of the High Representative, and OSCE in Zagreb, Sarajevo, Mostar, Banja Luka, and Brcko (Nov. 1996).
128. The counter-example is the U.N. Transitional Administration for Eastern Slavonia (UNTAES), which fully integrated its military and civilian components under a single command and which used this leverage repeatedly to positive effect. Interview with Mr. Jacques Paul Klein, former Transitional Administrator, in Vukovar, Croatia (Nov. 25, 1997).
129. "The United States is trying to re-create Bosnia in the American multi-ethnic, multicultural image-an Americanization of the Balkans, if you will." Hutchison, supra note 2, at A31.
130. See UNHCR REPORT, supra note 69, Annex 1.
131. The Republika Srpska municipality is Srebrenica, where they won 52% of the seats.
132. See International Crisis Group, ICG Analysis of 1997 Municipal Election Results (14 October 1997) 〈http://www.intl-crisis-group.org/report/bhxxprlo.htm〉. The total number of municipalities electing councils was 135, with a total of 4,789 seats. Total voter turnout was estimated at 87%. Id. 111. Another indicator of such sentiment even before the municipal elections has been the success of the "Coalition for Return," the network of Bosnian and international organizations representing returnees and the right to return independent of nationality. The Coalition was formed in 1996 at the initiative of then Deputy High Representative Michael Steiner, who believed that displaced persons and refugees had common interests that could unite them as a political movement. Information about the coalition can be found at the website of the Office of the High Representative 〈http://www.ohr.int〉.
133. Interviews with U.N. volunteers, U.N. Civil Affairs Officers, and staff of international and local nongovernmental organizations in Sarajevo, Banja Luka, Pale, and Tuzla (Nov. 1996). Few analysts have written systematically about community-level peacebuilding in Bosnia, although anecdotes are abundant. A recent exception is work by Julia Demichelis and lain Guest for the United States Institute of Peace. See Iain Guest, Moving Beyond Ethnic Conflict: Community Peace Building in Bosnia and Eastern Slavonia (Croatia) (paper presented at the USAID Conference Promoting Democracy, Human Rights, and Reintegration in Post-Conflict Societies, Oct. 30-31, 1997, Washington, D.C.).