The Dayton Accords in Light of Atrocities and Denial in Bosnia and Herzegovina

A few months before the 30th anniversary of the Dayton Accords, this closed meeting in the CILRAP Bottega in Florence considered the Accords in light of atrocities and their denial in Bosnia and Herzegovina, focusing on whether they ended up rewarding core international crimes at the detriment of positive peace. Chaired by CILRAP Director Morten Bergsmo, the meeting was attended by Professor Ivo Josipović (former President of Croatia), Justice Liu Daqun (Judge, International Residual Mechanism for Criminal Tribunals), Deputy Ambassador Erling Hoem (Norwegian Embassy in Rome), Professor Sarah Nouwen (EUI and Cambridge), and Mr. Peter McCloskey (former ICTY prosecutor in Srebrenica cases).

The General Framework Agreement for Peace in Bosnia and Herzegovina with 11 annexes (containing 10 agreements and a constitution) was signed in Paris on 14 December 1995, and is still in force between the parties Bosnia and Herzegovina (‘BiH’), Croatia and the Federal Republic of Yugoslavia (‘FRY’, later Serbia). The Agreement has, inter alia, (i) kept the peace in BiH and between the three parties for nearly 30 years; (ii) ensured mutual recognition between BiH and FRY; (iii) established a constitutional regime in BiH; and (iv) provided conditions for international assistance, co-operation and trade for BiH which was hardest hit by the armed conflicts. These are significant achievements that the 30th anniversary should duly recall. The Accords did not happen in a vacuum, but were concluded at the tail-end of a three-year process led by the International Conference on the Former Yugoslavia (‘ICFY’). In his CILRAP Conversation, ICFY-Director Dr. Bertrand Ramcharan discusses and defends the Accords and ICFY’s work.

But there are serious challenges in the implementation of the Accords, in particular in BiH where the entity ‘Republika Srpska’ – recognized by Dayton’s decentralized political system – paralyses constitutional institutions and has repeatedly threatened to secede from BiH. It is therefore no surprise that the Accords have been criticized for (i) creating a complicated governance system that invites deadlock between entity and national levels; (ii) facilitating dependency on foreign or international actors who channel resources to non-governmental organizations at the expense of local actors and economic investments; (iii) ending the violence of war while creating a ‘negative peace’, codifying division between Bosnian Muslims and Serbs; (iv) failing to facilitate genuine reconciliation between the different groups; and (v) for not doing enough to nourish a common BiH identity, but rather distributing power along ethno-nationalist identities. Engaging these critiques requires measured knowledge and understanding of the situation in BiH which authors on the subject may not always possess. 

This closed meeting in the CILRAP Bottega in Florence considered achievements of and challenges faced by the Dayton Accords. It took a probing look at Dayton from the perspective of the serious core international crimes committed in BiH during 1992-1995, with a view to assessing whether there are possible lessons for future peace mediation. While Article IX of the General Framework Agreement recognizes the obligation of the parties “to cooperate in the investigation and prosecution of war crimes and other violations of international humanitarian law” – and the Agreement’s implementation facilitated unprecedented ICTY fact-finding and arrests in BiH – the Accords have been criticized for recognizing ‘Republika Srpska’ despite its serious international crimes during the 3.5 preceding years, thus giving it legitimacy and significant constitutional powers. ‘Republika Srpska’ was excluded from direct participation in the Dayton negotiations (which instead made the FRY and Mr. Slobodan Milošević its representative) and the Bosnian-Serb leadership was not granted immunity for core international crimes – rather, the top leaders Radovan Karadžić, Ratko Mladić, Momčilo Krajišnik and Biljana Plavšić were all tried by the ICTY. But Dayton made the statelet born through their crimes a legal reality, and constitutionally affirmed most of the territory it had seized by attacking (using, interalia, extermination) and forcibly displacing Bosnian Muslims and Croats since the spring of 1992. Adding salt to the wound, later Bosnian Serb leaders have practiced widespread denial of atrocities committed by Bosnian-Serb and Serb forces (as confirmed by numerous judgments by the ICTY, the State Court of Bosnia and Herzegovina, and Croatian courts, including genocide convictions linked to Srebrenica).

This disconnect between perceived socio-political gain for Bosnian Serbs bestowed by Dayton, on the one hand, and the means they deployed to set up and secure ‘Republika Srpska’, on the other, raises questions. Does Dayton – concluded mere weeks after the mass-killing of more than 7,000 Bosnian Muslim non-combatants in Srebrenica – violate the principle of ex injuria jus non oritur (‘no benefit can be received from an illegal act’, referred to by Hersch Lauterpacht as “a well-established principle of law”), by entrenching ‘ethnic cleansing’? How does this principle apply to peace mediation? Does it serve as a guide in peace and reconciliation processes or should it perhaps not curtail diplomacy? Was it necessary to give ‘Republika Srpska’ entity status in the Dayton Accords? Were the Bosnian Serbs so strong militarily after the completion of Croatia’s ‘Operation Storm’ (until 14 August 1995), NATO’s ‘Operation Deliberate Force’ (until 20 September 1995), ‘Operation Maestral 2’ by Croatian and Bosnian Croat forces (until 15 September 1995), and ‘Operation Sana’ by the Army of the Republic of Bosnia and Herzegovina (ending 20 October 1995) as to justify the mediating actors’ legalisation of ‘Republika Srpska’? It is an interesting factual question to which extent Bosnian Muslim and Croat forces were told – while the Bosnian Serb forces collapsed like a house of cards – not to take Prijedor (where some of the worst crimes occurred in BiH) or Banja Luka by actors who played a role in the Dayton process. If so, why? Can we deduce any general insights for the benefit of future peace mediation from consideration of these questions?