Talking law in times of war?
The role of public international law in the mediation process of 1991 – 1995
towards peace in the successor states to the former Yugoslavia
Esther Dubach July 2016
Talking law in times of war?
The role of public international law in the mediation process of 1991 – 1995
towards peace in the successor states to the former Yugoslavia
Esther Dubach Supervisor: Dr. I. Venzke
20 July 2016
International and European Law: Public International Law
Abstract
This thesis focusses on the role of public international law (PIL) in the mediation process of the 1991 – 1995 war in the successor states to the former Yugoslavia. The purpose of this research is to discover to what extent, if at all, PIL is relevant in this specific international mediation. The mediation case is examined by looking at the secondary literature on the mediation processes and the primary literature on the mediation outcome: the (draft) peace agreements.
I will argue that the influence of PIL on the mediation process was very limited. Among the mediators a certain basic layer of PIL underlay their work, from which they did not derogate. The warring parties however were barely concerned with rules of PIL. During the war, international laws were not denied but rather ignored. The influence of PIL was more visible in the mediation outcome: the peace agreements. Not only were these documents legally framed, but also reference was made to - mainly - human rights treaties. This confirms my thesis that law looks back and it looks forward; at the moment of PIL violations law is powerless, but once the violations stop the law can claim its place.
PIL more often had a negative than a positive influence on the mediation process. A negative influence was that strictly holding on to rules limited the mediators’ negotiation freedom. At the time of the war PIL was underdeveloped in many areas; this certainly did not have a positive effect on the mediation.
The role of PIL law varied slightly at the different mediation levels. The mediators were assisted by several working groups, which were more concerned with PIL, but (also) lacked the power to effectively pursue perpetrators of breaches of PIL. The mediators did not consider dealing directly with PIL violations part of their job.
Most relevant to the mediation were rules of customary law and all the PIL treaties expected (IHRL, IHL, ICL), general PIL principles, e.g. pacta sunt servanda and aspects of general PIL like state recognition.
Striking is that the mediations often failed because of PIL influence; either because one of the parties could not agree with the granting of certain rights in the agreement, or because of one’s opinion that the proposed agreement was contradictory to rules of PIL.
However, political, military and practical motives prevailed and were often ‘wrapped’ in legally framed arguments.
Contents
I. Introduction 1
i. My legal standpoint 1
ii. Method 3
II. History of the Yugoslav war 6
i. ‘The Hour of Europe’ 6
ii. The Badinter Arbitration Committee 6
iii. The International Conference on the Former Yugoslavia 7
iv. NATO stepped in 7
III. Legal analysis of the Yugoslav mediation processes 9
i. The first mediation attempt: the Carrington-Cutileiro Peace Agreement 9
I.I CCPA part I: a draft Convention 9
I.II Rights of minority/ethnic groups 10
I.III CCPA part II: Statement of Principles 11
I.IV Civil war? And the role of recognition 12
I.V Uti possidetis iuris 13
I.VI Sub-conclusion 1 13
ii. The second mediation attempt: the Vance-Owen Peace Plan 13
II.I The International Criminal Tribunal for the former Yugoslavia 14 iii. The third mediation attempt: the HMS Invincible Package and beyond 15
III.I Ex iniuria ius non oritur 15
III.II Establishment of a national Human Rights Court/institution 15
III.III Sub-conclusion 2 16
iv. The fourth mediation attempt: towards the Dayton Agreement 16
IV.I The right to self-determination of liberation movements 16
IV.II Pacta sunt servanda 18
IV.IV Sub-conclusion 3 19 v. Analysis of the role of PIL in the four mediation attempts’ outcomes 19
V.I The failure of the one, the success of the other mediation 19
V.II Striking elements of the peace agreements 19
V.III Sub-conclusion 4 20
V.IV An overview of the PIL elements in the peace agreements 21
IV. Mediation in times of war 25
i. Legal framework 25
ii. Weighing goals 26
V. Conclusions 28
i. The role of public international law in mediation: limited 28 ii. Public international law in mediation: a predominantly negative influence 29 iii. Different levels of mediation, different public international law influences 30
iv. A limited range of public international law subjects 30
v. Mediation failures and successes: influenced by public international law 31
vi. Recommendations for further research 31
Bibliography 32
a. (Contributions to) books 32
b. Journal articles and online published academic articles 32
c. (Research) reports 33
d. Treaties and other legal documents 33
e. UN documents 34
f. Jurisprudence 34
g. Official papers 34
h. Newspaper articles 34
Appendix (in separate file)
a. The Carrington-Cutileiro Plan and the London Principles b. The Vance-Owen Peace Plan
c. The HMS Invincible Package d. The Dayton Agreement
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I. Introduction
The Genevan peace negotiations with the aim to settle the civil war in Syria are currently stalled because Mohammed Alloush, the chief negotiator for the opposition, was disappointed in the achievements of the talks and resigned. This month a new negotiator will be appointed and the peace talks will continue.1 Will these negotiations finally lead to a solution for this long-lasting problem? Only time will tell. Conflict resolution is an area in which politics and law can get confusingly intertwined.2 When watching the news, it seems that politics dominate the process. Does international law only exist for the fun of it, or does it have force to some extent? If so, is this a negative force or a positive one? How exactly is this role visible in the process towards and the final drafting of a peace agreement?
International mediation is highly political, but even situations as brutal and savage as wars are - at least on paper - governed by rules of international law. This thesis investigates the role of public international law (PIL) in the process towards peace in times of war. To find out, I will look at the case of the former Yugoslavia. Between 1991 and 1995 the Socialist Federal Republic of Yugoslavia (SFRY) fell apart which led to a full-scale (civil) war. Three failed peace mediations preceded the fourth one, in 1995, that succeeded. When it comes to conflict resolution, does PIL have a dominant, guiding role, is it limited, or does it not play a part at all? In the mediation process, on what level, if at all, are influences of PIL visible? Are those influences positive or negative (e.g. restraining), when one considers ending the war as the main aim? What sorts of PIL influence the mediation? To what extent goes the adage “all is fair in love and war”?3 Or, in other words: Are the applicable rules on specifically human rights law and humanitarian law obeyed? And what is the juridical influence on the failure of one mediation attempt and the success of another? These questions form the subject of my thesis research.
I. My legal standpoint
1 Lisa Barrington et al, ‘Syrian Opposition to Decide New Negotiating Team Next Week After Resignation’ New York Times (30 May 2016)
< http://www.nytimes.com/reuters/2016/05/30/world/middleeast/30reuters-mideast-crisis-syria-opposition.html> accessed 7 June 2016; Hamdi Alkhshali and Angela Dewan, ‘Syria bombards starving Daraya hours after food aid delivery’ CNN (11 June 2016)
<http://edition.cnn.com/2016/06/11/middleeast/syria-food-aid-strikes/index.html> accessed 11 July 2016
2 Ingo Venzke, ‘Post-modern perspectives on orthodox positivism’ in Jörg Kammerhofer & Jean
D’aspremont (eds), International Legal Positivism in a Post-Modern World (CUP 2014) 183
3 Francis Edward Smedley, Frank Fairleigh; Or, scenes from the life of a private pupil (first published 1850,
2
Since it is an essential part of my research question, it is quite important to define what the term ‘international law’ means to me. I recognize the rule of law: the conduct of states is governed, limited and controlled by the power of international law, and not just by politics.4 As Lauterpacht put it in 1933: “Legal rules whose content or application depends on the will of the legal subject for whom they are valid are not proper legal rules at all but apologies for the legal subject’s political interest.”5
The rule of law should prevail over powers, but it would be naive to ignore powers. The opposition between law and politics is blurred since law also reflects power: the law is always the result of the policies of a state. Also, by attempting to reach full universality, different values of different parts of the world are ignored.6 International law should be and already is a pluralistic set of rules. In this thesis I will be mainly looking at formal international law, but some sidesteps to informal law cannot be excluded, as this can signal important reforms that might be coming up. Ignoring informal law in its entirety makes one’s view on the world too narrow. Fully focussing on informal law however would be “giving up my own field of expertise”.7 Besides, “where there is law and principle, so there is strength and the capacity to oppose. Where there are merely policies and guidelines, everything, including protection, is negotiable […].”8 Law has a stronger capacity to oppose than politics. PIL can be seen as a universal argumentative framework, in which states, in their own search for self-determination, interpret international law as they want it to be. We cannot uphold however that PIL is in itself a universal system; it is a pluralistic system in the sense that one rule of PIL can have multiple different interpretations. Korhonen writes: “There is no book or store where the practitioner of IL could find universally applicable norms and put them to use as they are. […] Meaning is a product of interpretative activity by an individual mind working within the frames of a situation.”9
Now I will make clear where I stand on the scale of approaches to international law. My beliefs influence the way I read and interpret articles and what and how I write. I consider myself to be a moderate positivist. ‘My’ positivism is influenced by values of natural law; I
4 The idea of the rule of law goes back to Aristotle, Jørgen Møller and Svend-Erik Skaaning, The Rule of Law
(Palgrave Macmillan 2014) 2
5 H. Lauterpacht, The Function of Law in the International Community (first published 1933, the Lawbook
Exchange 2000)
6 This relates to the debate on cultural relativism in human rights, see Yvonne Donders, ‘Do cultural
diversity and human rights make a good match?’ (2010) vol. 61:199 International Social Science Journal 16
7 As professor Nollkaemper put it during the lectures of the course ‘Principles and Foundations of
International Law’, University of Amsterdam 2015
8 Guy Goodwin-Gill, ‘Refugee Identity and Protection’s Fading Prospects’ in Frances Nicholson & Patrick
Twomey (eds), Refugee Rights and Realities: Evolving International Concepts and Regimes (CUP 1999) 240
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do believe, for example, that every human being has certain unalienable rights by birth. An unjust law is not necessarily a law to me. Laid down laws should be leading, because one needs some direction, but in my opinion there is a constant shift in what is law, because the law in action co-determines what is law. It would be ignorant to keep holding on to the existence of a certain law, if nobody in the world obeys it, or believes he should.10 To conclude: I am a positivist international lawyer, who also looks at law in its social context and who is sensitive for justice dimensions. In the words of Simma and Paulus: I am an enlightened positivist.11
II. Method
Only looking at the result of the mediation - the peace agreement - would give an incomplete and biased view of international mediation, so I decided to take a case in which several attempts were made before finally a lasting peace agreement was signed. The limits in time and space of a master’s thesis forced me to confine myself to one case study. Preferably I would have looked at several cases, from different decades, to be able to get a full picture of the international mediation process. Yet, given the series of attempts to resolve the 1991 - 1995 war in Yugoslavia, this case study offered the opportunity to consider the different mediations as four case studies in one context, broadening the space for comparison. Time constraints also explain my choice for the sole use of existing primary and secondary literature sources; unfortunately doing fieldwork was not an option. An essential element of mediation is that it often takes place behind closed doors. I therefore cannot obtain full insight in what is said and done during the negotiations. Although this is a restraining factor of my research, I foresee no real obstacles raised by this, since the mediators wrote extensively about their work, as did others, and many documents are well kept and public. Another point to note in this regard is that I realize – and take with me in my analysis - that the mediators’ books are no purely objective sources. The biographies are their perspectives of the course of events. To find out the real role of PIL in the process, I went through these and other sources and through the failed and successful peace agreements, and made an effort to categorize and
10 Immanuel Kant, Groundwork of the Metaphysic of Morals (first published 1948, newly translated by H.J.
Paton, Hutchinson & Co. 1961) 70-2; James Rachels, The Elements of Moral Philosophy (McGraw-Hill, Inc. 1993) 117-26; Hans Kelsen, Pure Theory of Law (University of California Press 1967) 204
11 Possible critique on such broadening and fading of a term like ‘positivism’ is that the term becomes a
rather empty container. Unfortunately this discussion exceeds the scope of this thesis.
Bruno Simma and Andreas L. Paulus, ‘The Responsibility of Individuals for Human Rights Abuses in Internal Conflicts: A Positivist View’ (April 1999) 93-2 AJIL 302-316
4
structure the PIL elements therein. The table I produced on page 21 is meant to give an overview.
I will look at the system of authoritative rules and investigate how it affects everyday practice: How does PIL influence the mediation process and its outcome? I will look at the peace process that eventually led to the Dayton Agreement, which obviously tells us nothing about everyday reality in the sense that it first has to be implemented to be of practical meaning. This shows the duality of my research: The peace process is the practice but the outcome of it, the peace agreement, is, before implementation, nothing more than a piece of paper. The implementation of the peace accords, and in conjunction with this: the question whether the peace agreement in itself is legally binding will however not be a part of this thesis.
From an external perspective I describe, connect and compare what I encounter, and I try to be as neutral as possible. Since I am a human being a 100% neutrality will not be reached. It is unavoidable that the fact that I am educated as a lawyer in the Netherlands, a Western, secular country, to mention just a few characteristics that come to mind, has influenced my conscious and unconscious thinking. I try to be descriptive; not normative. This thesis research will be of a qualitative character; I will look at PIL’s relevance in the process that led to and the nature of the peace agreements in the former Yugoslav states.
How can I establish that a certain conduct is due to the influence of PIL, rather than other factors? The truth is: I cannot tell with certainty. The closest I can get to this establishment is to picture the situation in absence of PIL. If the situation would then look different, the influence of PIL is ascertained. This is the ‘counterfactual thought experiment’, as elaborated by for example Max Weber, which I will try to carry out. By weighing alternative explanations I analyse the durability of the legal argument.12 A French expression goes (freely translated): “For all the ‘ifs’ in the world you can put Paris in a bottle.” In this thesis however it can be a useful technique to better be able to separate law from politics (insofar possible at all). In this regard I will also look at the use of PIL language to frame a certain conduct. The use of legal language does not necessarily mean that PIL itself has relevance in that context. It might as well be only a framework, or even a masquerade.
12 Max Weber, The Methodology of the Social Sciences (The Free Press 1949) 164-88; James D. Fearon,
‘Counterfactuals and Hypothesis Testing in Political Science’ (Jan. 1991) 43:2 World Politics 169-95; Ingo Venzke, ‘Post-modern perspectives on orthodox positivism’ in Jörg Kammerhofer & Jean D’aspremont (eds), International Legal Positivism in a Post-Modern World (CUP 2014) 202
5
In this thesis I will argue that the role of PIL in the international mediation process of the former Yugoslavia was limited, sometimes restraining but nevertheless required to keep control over the process and give weight to the outcome. Only a small amount of specific international legal issues were involved. Both to parties and to mediators PIL was of limited interest. The mediation outcomes, the peace agreements, were framed as legal documents and here the role of PIL was more visible. Striking was the absence of certain subjects of PIL, for example rights for minorities in the Dayton agreement. Exactly this is what made Dayton succeed; the presence of other PIL subjects made earlier mediations fail. I will also argue that law looks back and it looks forward: at the exact moment of PIL violations law is more or less powerless since it is granted little or no power. This explains the limited influence of PIL in the mediation process.
First I will discuss the history of the Yugoslav war (chapter II). Subsequently the relevant issues of PIL in the mediation processes (chapter III) are dealt with. Then a short chapter follows on international mediation (chapter IV). Finally I will draw some conclusions (chapter V).
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II. History of the Yugoslav war13
Yugoslavia was a federation consisting of six republics: Slovenia, Croatia, Bosnia-Herzegovina, Serbia, Montenegro and Macedonia. The Cold War had just ended with the dissolution of the Soviet Union in December 1991. The international politics of the Cold War contributed considerably in holding Yugoslavia together. The disappearance of communist governments and state control led to tensions, also in Yugoslavia. This eventually resulted in an ethnic civil war that took the lives of an estimated number of 140,000 people.14 The war in Yugoslavia led to grotesque abuses of humanitarian law and human rights.15 The UNHCR (United Nations High Commissioner for Refugees) reported that the situation on the ground in eastern Bosnia was a “total domination of war logic over humanitarian concerns.”16
I. ‘The hour of Europe’
In 1991, the United Nations (UN) and in particular the Security Council (SC) were largely paralyzed. The international community preferred regional organizations to solve the Yugoslavian problem. The European Community (EC) therefore took the lead, after a request of Yugoslavia. The EC was supported by the CSCE (Conference on Security and Co-operation in Europe, later OSCE, Organization for Security and Co-Co-operation in Europe), the UN and the international community and relied on and often referred to the principles of the Helsinki Final Act and the Charter of Paris, which formed the legal basis of the CSCE.17 Characteristic for the Yugoslav war is that the United States (US) was unwilling and the EC unable to act. For a long time president Clinton’s policy was to leave this European war to Europe to resolve.18 The US did not want Bosnia to become an American responsibility; the EC did not want to become combatants in the war without US support.19
II. The Badinter Arbitration Committee
13 An excellent documentary on the dissolution of the SFRY is BBC’s ‘The Death of Yugoslavia’,
<https://www.youtube.com/watch?v=oODjsdLoSYo> accessed 8 June 2016
14 Richard H. Ullman, The World and Yugoslavia’s Wars (Council on Foreign Relations Books 1996) 9-13;
<https://www.ictj.org/publication/transitional-justice-former-yugoslavia> accessed 3 June 2016. Holbrooke mentions the number of 300,000 deaths and president Clinton talks about 250,000 people, Richard Holbrooke, To End a War (Random House 1998) 309
15 Malcolm N. Shaw, International Law (7th edn, CUP 2014) 289; UN SC Report S/25274,
<http://www.icty.org/x/file/Legal%20Library/Statute/statute_re808_1993_en.pdf> accessed 9 June 2016
16 David Owen, Balkan Odyssey (Victor Gollancz 1995) 122
17 Geert-Hinrich Ahrens, Diplomacy on the Edge (Johns Hopkins University Press 2007) 39; 44; David
Owen, Balkan Odyssey (Victor Gollancz 1995) 31-33
18 Hence the name of the book: Josip Glaurdić, The Hour of Europe (Yale University Press 2011); Clinton
was elected in 1993
7
At the EC Peace Conference (where the first mediation, the Carrington-Cutileiro mediation took place) the Badinter Arbitration Committee20 was established. The Committee had the mandate to offer binding arbitration on the legal and institutional aspects of constitutional problems.21 Its fifteen opinions were about succession and dissolution,22 self-determination,23 boundaries,24 recognition25 and the consequences of state succession.26 The Committee later-on worked for the Internatilater-onal Clater-onference later-on the Former Yugoslavia.
III. The International Conference on the Former Yugoslavia
In August 1992 the International Conference on the Former Yugoslavia (ICFY)27 and six Working Groups were established, a cooperation between the UN and the EC. The co-chairmen of the ICFY became the mediators: first Cyrus Vance and Lord David Owen; later-on Thorvald Stoltenberg and Carl Bildt.28 Thirteen principles were formulated, which formed the basis and the parameters for any negotiated settlement to follow.29 Under the ICFY two mediation attempts were made: the Vance-Owen Plan and the HMS Invincible Package. IV. NATO stepped in
After the Sarajevo marketplace bombing in February 1994 the future and credibility of NATO was at stake, which made the US willing to participate. In February 1994 the Contact Group arose, consisting of representatives of the US, Russia, Britain, France and Germany. The signing of the Washington Agreement in March 1994, basically a power-sharing agreement, meant the end of the war between the Bosnian Croats and the Bosnian Muslims.30 With this Agreement the Serbs were isolated at the negotiation table.
20 Also known as the Arbitration Commission of the Peace Conference on Yugoslavia
21 Darrel Menthe, ‘Legalization and the mediation of international disputes: the Balkan experience’ (2007)
vol. 23:83 Connecticut Journal of International Law 83; Geert-Hinrich Ahrens, Diplomacy on the Edge (Johns Hopkins University Press 2007) 46; Alain Pellet, ‘The opinion of the Badinter Arbitration Committee: A second breath for the self-determination of peoples’ (1992) vol. 3(1) European Journal of International Law 178-185
22 Opinions #1, #8, #10, #11 23 Opinion #2
24 Opinion #3
25 Opinions #4, #5, #6, #7
26 Opinions #9, #12, #13, #14, #15, see annex or B.G. Ramcharan (ed.), The international conference on the former Yugoslavia: official papers (Kluwer Law International 1997)
27 Not to be confused with the ICTY
28 <http://search.archives.un.org/international-conference-on-former-yugoslavia-icfy> accessed 20 May
2016
29 See annex or supra n. 26
30 Ivo H. Daalder, Getting to Dayton (Brookings Institution Press 2000) 23-27;
8
Former US president Jimmy Carter negotiated a ceasefire in late December 1994 that held until early spring 1995.31 This turned out to be the silence before the storm: The Bosnian Serb leaders Karadžić and Mladić were openly getting more hostile: The Bosnian Serbs now considered the UN to be their enemy and UN hostages were taken after NATO air strikes.32 Their increasing aggressiveness eventually led to the massacres in Srebrenica and Zepa in July 1995. The Croatian Serbs responded by attacking Bihac the same month.33 Finally NATO member states must have thought: “A little less conversation, a little more action please. All this aggravation ain’t satisfactioning me”; this was now more possible than ever before, because there were only a few UNPROFOR34 troops on the ground.35 UN and NATO could ultimately strike back: Operation Deliberate Force started.36 The US took the lead in new negotiations, while the bombing continued. The method used by the Americans was what the Chinese would call, as Dayton mediator Holbrooke put it: “Talk-talk, bomb-bomb.”37 After more NATO bombing it became clear to the Bosnian Serbs that Milošević would not militarily intervene to save them.38 This further weakened their position. Because the fighting continued (although less intense than previously), the situation on the ground was becoming more and more similar to the negotiation maps.39 Finally a general cease-fire was reached and NATO set up IFOR, the Implementation Force Operation, that consisted of both NATO and non-NATO troops. The Dayton mediation could begin and turned out to be successful.
11994.pdf> accessed 3 June 2016; Geert-Hinrich Ahrens, Diplomacy on the Edge (Johns Hopkins University Press 2007) 209
31 Ivo H. Daalder, Getting to Dayton (Brookings Institution Press 2000) 31-35 32 David Owen, Balkan Odyssey (Victor Gollancz 1995) 223-54; 323
33 Richard Holbrooke, To End a War (Random House 1998) 70-1
34 The UN came into Croatia in early 1992 to keep a negotiated peace, David Owen, Balkan Odyssey (Victor
Gollancz 1995) 12; UNSC Res. 727, 8 January 1992 and 743, 21 February 1992
35 UNPROFOR was originally a UN peace operation in Croatia and Tudjman did not extent its mandate in
January 1995, David Owen, Balkan Odyssey (Victor Gollancz 1995) 314-5
36 Richard Holbrooke, To End a War (Random House 1998) 101 37 Ibid., 104
38 Ibid., 159 39 Ibid., 168; 172
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III. Legal analysis of the Yugoslav mediation processes
Despite article 2 of the UN Charter it is rule rather than exception that during war international laws are violated. No period of time is as messy as wartime – literally and emotionally. In this chapter I will look at the mediation processes and analyse, inter alia by means of counterfactual thinking, the legal aspects. I will argue that the role of PIL in the mediations was limited and more often negative than positive. I will discuss why the one mediation attempt failed and the other succeeded. Also, an overview is given of the sorts of PIL that were included in the peace agreements. On different levels in the mediation tree PIL is valued differently; this is briefly touched upon in this chapter. More about that will follow in chapter IV.
The following mediation attempts will be analysed:
The Carrington-Cutileiro Peace Agreement (November 1991 – August 1992) The Vance-Owen Peace Plan (September 1992 – June 1993)
The HMS Invincible Package (June 1993 – February 1994) The Dayton Agreement (August - November 1995)
I. The first mediation attempt: the Carrington-Cutileiro Peace Agreement
The first mediation process in fact consisted of two parts. The first was rejected by the Serbian president Milošević; the second by the Bosnian president Izetbegović.
I.I Carrington-Cutileiro Peace Agreement part I: a draft Convention
At the European Community Peace Conference of 1991-1992, chaired by Lord Carrington, a draft Convention was produced.40 The four basic parameters for a solution were: 1) a loose association or alliance of sovereign and independent republics, 2) protection for human and minority rights with possible special status for certain areas, 3) no unilateral change of borders, and 4) a perspective of diplomatic recognition at the end of the negotiation process.41 Milošević knew that if the draft Convention would pass, he would lose the region of Kosovo, because the plan explicitly granted rights to ethnic groups, in line with PIL on minority rights. The second of the four basic parameters, the special status, could result in the independence of the region of Kosovo. Milošević considered Kosovo to be an internal Serbian problem not
40 See annex or supra n. 26
41 Geert-Hinrich Ahrens, Diplomacy on the Edge (Johns Hopkins University Press 2007) 86; Michael Libal, Limits of persuasion: Germany and the Yugoslav Crisis, 1991-1992 (Praeger Publishers 1997) 62-3
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open to ‘foreign interference’ and internationalization.42
He rejected the peace agreement: According to him, interference was legally not allowed because territorial integrity of a state is inviolable.43 Was the failure of part I of the first mediation process due to influences of PIL? Milošević used one legal argument, that of state sovereignty, as a façade to conceal different motives: His disagreement with the granting of rights and a special status to minorities. However, clearly he either actually knew that this would be just, or he realized that the majority of the international community found it just; either way it confirms the existence of minority rights as law for him.
How do I know that his argument was a façade? The principle of state sovereignty did not stop Milošević from invading other countries. It is a disadvantage of PIL that it can be abused in such a manner.
Noteworthy is the fact that Milošević apparently attached a certain compulsory weight to the peace agreement. A peace agreement is a legal document. Milošević was impressed by the power of law; otherwise he could have simply signed the document to directly throw it in the litter bin. I come back to this in § IV.III.
I.II Rights of minority/ethnic groups
The Arbitration Commission bypassed the Yugoslav legislation on nations, nationalities and minorities without much ado, applying international minority law,44 which was, according to some, insufficient for addressing the problems in Yugoslavia.45 To start with, there was no internationally accepted definition for the term ‘minority’. Ahrens, Chairman of the ICFY Human Rights and Minorities Working Group, stated: “Minority problems with which we dealt were of a political rather than of a legal nature. […] For minority problems […], the Working Group tried to create Yugoslavia-specific parameters.”46 In the final mediation attempt, the Dayton agreement, the words ‘minority rights’ or ‘rights for ethnic or national
42 Geert-Hinrich Ahrens, Diplomacy on the Edge (Johns Hopkins University Press 2007) 98; 333; 353;
David Owen, Balkan Odyssey (Victor Gollancz 1995) 76
43 Art. 2 sub 7 UN Charter; Malcolm N. Shaw, International Law (7th edn, CUP 2014) 92, 155; 1970
Declaration on Principles of International Law; Geert-Hinrich Ahrens, Diplomacy on the Edge (Johns Hopkins University Press 2007) 48
44 “Sources of PIL on minorities were international instruments adopted or discussed by the UN, the CSCE,
and the Council of Europe […].”,Geert-Hinrich Ahrens, Diplomacy on the Edge (Johns Hopkins University Press 2007) 93
45 Geert-Hinrich Ahrens, Diplomacy on the Edge (Johns Hopkins University Press 2007) 93 46 Ibid., 94
11 groups’ are nowhere mentioned.47
According to some authors this is exactly why Dayton succeeded; legal values are sacrificed in order to end the war. Kosovo’s minority problem did not receive much attention in the years 1991 - 1995, which turned out later to be a huge mistake.48 One reason for this was that Milošević was considered to be needed to solve the war, and ‘bothering’ him with Kosovo seemed unwise.49
Political considerations trumped important legal questions.
During one of the mediations Croatian president Tuđman wanted eastern Slavonia reintegrated into Croatia and asked whether the Serbs would accept that. Milošević answered: “Would the Serbs have rights as a minority in eastern Slavonia?”50
This shows that the parties were well aware of the fact that minorities should be granted rights: international laws were not denied but ignored.
I.III Carrington-Cutileiro Peace Agreement part II: Statement of Principles
In March 1992 a Statement of Principles was agreed upon by the Croats, the Muslims and the Serbs. The basic idea of the Statement of Principles was that of a loose federal state of three ethnic autonomous units, being not geographically continuous. However, the Bosnian president Izetbegović shortly after withdrew his signature.51
According to him ethnically dividing the country in such a way was not possible because of Bosnia’s mixed composition.52
Mediator Carrington was of the opinion that because of the premature recognition of Croatia and Slovenia, in which the EC followed the opinion of the Badinter Committee,53 he did not have any leverage left to make his plan work.54 Others disagree with this point of view, since it was not Croatia or Slovenia that had to be pressurized but Serbia.55 Visible here is a discrepancy in the use of recognition: the Badinter Committee checked whether the respective countries met the requirements of independent statehood; recognition was an end in itself.
47 See §5 of this chapter; Geert-Hinrich Ahrens, Diplomacy on the Edge (Johns Hopkins University Press
2007) 188
48 David Owen, Balkan Odyssey (Victor Gollancz 1995) 343; Geert-Hinrich Ahrens, Diplomacy on the Edge
(Johns Hopkins University Press 2007) 86; 317
49 Geert-Hinrich Ahrens, Diplomacy on the Edge (Johns Hopkins University Press 2007) 330 50 Richard Holbrooke, To End a War (Random House 1998) 238
51 See annex or supra n. 26; David Owen, Balkan Odyssey (Victor Gollancz 1995) 62, 92, 193, 232;
Geert-Hinrich Ahrens, Diplomacy on the Edge (Johns Hopkins University Press 2007) 209
52 I will discuss the question of ethnic cleansing in another paragraph; James E. Goodby, ‘Bosnian Peace
Plans before Dayton’ (1996) International Negotiation 509-10
53 See annex or supra n. 26 for Opinions #4, 5, 6, 7 of the Arbitration Commission 54 David Owen, Balkan Odyssey (Victor Gollancz 1995) 29; 343
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Mediator Carrington, concerned with ending the war, considered recognition a political means to an end.
What would have happened if the Badinter Committee were not involved in this? Carrington would have used the possibility of international recognition to gain leverage in the mediation. I agree with Ahrens that this would have made Serbia’s position stronger, something that probably would not have contributed positively to the war duration and intensity. This is an example of the positive influence of the applicability of PIL.
I.IV Civil war? And the role of recognition
The war in Yugoslavia contained elements both of a war of secession and of a civil war.56 It depends on how one qualifies the declarations of independence whether one should speak of one civil war or in fact several wars with elements of civil war, secession and interstate conflict. The latter view is the predominant one.
The recognition of these states has played a major role in the development of the war. Recognition of Slovenia and Croatia was viewed by the German government as a tactical move: Recognition would qualify the war no longer as a civil war but as an international war, which would legalize the involvement of other states. Besides, it would force Serbia to obey the rulings of international authority. Lord Carrington however wrote to the then president of the EC Council of Foreign Ministers: “There is also a real danger, perhaps even a probability, that Bosnia-Herzegovina will also ask for independence and recognition, which would be wholly unacceptable to the Serbs […]. Milošević has hinted that military action would take place there if Croatia and Slovenia were recognized.”57
In these opposing views and motives no juridical but tactical arguments were used. The Badinter Committee however made clear in its first Opinion that recognition by other states is purely declaratory and that, bluntly phrased, the Montevideo criteria apply: Slovenia, Croatia, Macedonia and Bosnia-Herzegovina (BiH) were at that moment independent states.58 The Committee’s opinion was followed by the international community: In the course of 1992 and 1993 the independence of Slovenia, Croatia, Macedonia and BiH was recognized worldwide. The strong influence of the Badinter Committee, a juridical body, in the process of recognition gave it a more juridical character. What would have happened if the Committee had not been established? Chances are that international recognition would have been based on the tactical arguments mentioned before.
56 David Owen, Balkan Odyssey (Victor Gollancz 1995) 3 57 Ibid., 343
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I.V Uti possidetis iuris
Uti possidetis iuris, ‘as you possess under law’, provides that the borders of the area that now
forms the newly sovereign state should be the international boundaries of the new state,59 as stipulated in the Helsinki Final Act.60 Uti possidetis iuris was the legal argument used by the Badinter Committee to state that the internal boundaries between Croatia and Serbia and between BiH and Serbia should be regarded as frontiers in terms of PIL.61 This principle is closely related to international recognition and takes away any negotiation space concerning boundaries. Later on in the mediations negotiating boundaries became the main topic. Would it have been in favour of the mediations if the principle had not existed? Boundaries would have been discussed then already in the earliest mediation attempts. Whether this would have led to an earlier solution remains unknown.
I.VI Sub-conclusion 1
Milošević’s way of rejecting CCPA part I revealed both his recognition of PIL, specifically minority rights, and his respect, at least in this case, for the law. Ahrens, who worked on a lower level in the mediation tree, made clear that he, much more than the top mediators, had to deal with PIL. The efforts of the Working Group were not appreciated enough at the higher mediation levels, because political considerations trumped legal questions. A positive influence of the applicability of PIL was visible in the Badinter Committee’s role in the recognition issue. Besides, the strong influence of the Committee gave the process of recognition a more juridical character. It remains unclear whether it would have had a positive influence on the mediation if the principle uti possidetis iuris had not existed.
II. The second mediation attempt: the Vance-Owen Peace Plan
The basis for the Vance-Owen Peace Plan (VOPP) was the idea of a centralized federal state with significant functions carried out by four to ten regions.62 Bosnian president Izetbegović stated that the proposed map ratified and legitimized the fruits of ethnic cleansing.63 Vance and Owen however were of the opinion that the VOPP provisions were anything but
59 Land, Island and Maritime Frontier Dispute (El Salvador/Honduras) [1992] ICJ Rep 351 60 Geert-Hinrich Ahrens, Diplomacy on the Edge (Johns Hopkins University Press 2007) 88;
<http://www.osce.org/mc/39501> accessed 3 June 2016
61 See annex or supra n. 26 for Opinion #3 of the Arbitration Commission 62 David Owen, Balkan Odyssey (Victor Gollancz 1995) 62
63 The Yugoslav war brought a new word into the dictionary: ethnic cleansing: the mass expulsion or killing of members of one ethnic or religious group in an area by those of another’,
<http://www.oxforddictionaries.com/definition/english/ethnic-cleansing?q=ethnic+cleansing> accessed 8 June 2016; David Owen, Balkan Odyssey (Victor Gollancz 1995) 87; 93; 104
14
legalizing ethnic cleansing; instead they were ensuring all relevant human and minority rights and the map was designed to reverse the results of ethnic cleansing.64 Both Owen and Ahrens were of the opinion that drawing state borders along ethnic lines was dangerous, but so was ignoring ethnic and national voices.65 This shows the complexity of navigating through different values of PIL: condemning violations of ICL and at the same time protecting minorities as best as possible.
II.I The International Criminal Tribunal for the former Yugoslavia
In 1993, during the war, the International Criminal Tribunal for the former Yugoslavia (ICTY) was established by a UN SC Resolution.66 It was given the mandate to prosecute persons responsible for serious violations of international humanitarian law (IHL). In what way did the establishment of the ICTY influence the mediation process? Holbrooke expressly stated during the mediation that he was not going to compromise on the ICTY.67 Mladić was however not afraid of this Tribunal since he knew he was protected by his army.68 On Karadžić Owen writes: “The humiliation of still being restricted wherever he went in New York and having the threat of a civil law action being served on him at any time for alleged war crimes, was taking its toll. The Serbs preferred the less confrontational atmosphere of Geneva.”69
I have not found any prove that the existence of the ICTY either protracted or accelerated the conflict. What Owen writes about Karadžić suggests that the ICTY made him nervous. Whether this had a positive or a negative influence on the mediation process remains unknown.
It is striking that the only reference made to international criminal law (ICL) in the negotiations and the peace agreements is the reference to ethnic cleansing. This might be because of the establishment of the ICTY already during the war. What if the ICTY had not been established in 1993? Would the role of ICL during the mediation process have been bigger? Now the mediators could draw a clear line between their job and the ICTY’s. To give a valuable answer to these questions more research has to be done, to make a comparison between mediations in which no criminal court was established and mediations like the one in Yugoslavia, with its ICTY.
64 David Owen, Balkan Odyssey (Victor Gollancz 1995) 87; 93; 104; 107
65 Ibid., 343; Geert-Hinrich Ahrens, Diplomacy on the Edge (Johns Hopkins University Press 2007) 86 66 Established under Chapter VII of the UN Charter, UN SC Resolution 827, 25 May 1993,
<http://www.icty.org/x/file/Legal%20Library/Statute/statute_827_1993_en.pdf> accessed 8 June 2016
67 Richard Holbrooke, To End a War (Random House 1998) 107 68 David Owen, Balkan Odyssey (Victor Gollancz 1995) 156 69 Ibid., 123
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III. The third mediation attempt: the HMS Invincible Package and beyond
In mid-July 1993 there was an agreed new framework between the presidents of the Federal Republic of Yugoslavia (FRY, Serbia and Montenegro), Croatia and BiH and the Bosnian Serb and Bosnian Croat leaders: a Union of three Republics.70 Izetbegović rejected the Package. His main problem was with the map: he wanted to regain certain towns that, before the war, were Muslim towns.71 Although it probably would have been better if Izetbegović would not have had the legal principle ex iniuria ius non oritur to back up his point of view, it would not have made a big difference in the end. Fact is that he was not willing to compromise for the sake of ending the war.
III.I Ex iniuria ius non oritur
In this mediation attempt it became very clear how restrictive invoking PIL can be. Just as he did with the ditching of the VOPP, Izetbegović used the argument of ex iniuria ius non oritur, ‘a legal right or entitlement cannot arise from an unlawful act or omission’. It is self-evident that in a war parties win or lose territory. For mediation this maxim is a clincher because it takes away all negotiation space if one party firmly holds on to it. It can protract wars indefinitely.
Throughout the war the international community was of the opinion that especially the Serbs should not be ‘awarded’ for their military actions by assigning territory to them.72
The Arbitration Committee made clear that the alteration of existing boundaries or frontiers by force is not capable of producing any legal effect.73 Some international mediators would have preferred more flexibility on negotiation of borders.74 If there would have been less emphasis on this principle, would the mediations have gone differently? I doubt it. Ironically, despite the firm international policy on border changes, most of the negotiations and the use of violence were about the percentage of land and rearranging maps, that is: border issues.75 The legal principle did not have the strong position in the mediations as the international community wanted it to have.
III.II Establishment of a national Human Rights Court/institution
70 See annex or supra n. 26
71 David Owen, Balkan Odyssey (Victor Gollancz 1995) 213 72 Ibid., 62
73 See annex or supra n. 26 for Opinion #3 of the Arbitration Commission
74 David Owen, Balkan Odyssey (Victor Gollancz 1995) 33; Geert-Hinrich Ahrens, Diplomacy on the Edge
(Johns Hopkins University Press 2007) 517
16
Owen notes: “It had become very apparent to Vance and me that the strong position of the ICFY in the protection of human rights was being ignored [by the international community as a whole, ED].”76 Here he refers to the efforts of the ICFY Working Groups on legal issues like minority rights. He decided to found a Human Rights Court, which exhibits the mediators’ appreciation of human rights: Even though human rights were barely discussed during the mediation, by way of establishing some kind of human rights institution it received attention after all. This state of affairs confirms my thesis that law looks back and it looks forward:77 At the moment the human rights and other violations occur, there is little space for the law to make the injustice stop and turn the tide. However, once the state of war is terminated, it is time for the law to step in.
III.III Sub-conclusion 2
The restrictive role of PIL became very visible when invoking the principle iniuria ius non
oritur. Holding on to such a principle can protract wars indefinitely. However I doubt that the
mediation would have gone differently if there would have been less emphasis on this principle by the international community, because the principle did not have such a big role in the mediations: negotiating borders was the main theme. Owen’s attempt to establish a national Human Rights Court showed his appreciation of and concern about human rights. The fact that there was limited PIL influence at the highest mediation level was not because the mediators disregarded PIL but because they encountered the dilemma of combining PIL and the mediator’s task. It is a confirmation of my thesis that law looks back and it looks forward.
IV. The fourth mediation attempt: towards the Dayton Agreement
The Bosnia Proximity Talks were held near Dayton, USA and the agreement was signed in Paris on 14 December 1995. The negotiations in Dayton dealt mostly with the division of the territory.78 The Serbs and the Croats managed to agree on a division of territory. Only the Bosnian president Izetbegović refused to give up 1% of his land and to sign the agreement. An ultimatum was necessary to force him into signing: peace, at last!79
IV.I The right to self-determination of liberation movements
76 David Owen, Balkan Odyssey (Victor Gollancz 1995) 121
77 Aoife O’Donoghue, ‘How does international law condition responses to conflict and negotiation?’ (2016)
7:2 Global Policy 272
78 Richard Holbrooke, To End a War (Random House 1998) 275; 289 79 Ibid., 312
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In November 1991 the Badinter Committee was asked whether the Serbian population in Croatia and BiH, as one of the constituent peoples of Yugoslavia, had the right to self-determination. The Commission made clear that “international law currently does not spell out all the implications of the right to self-determination.” However, all the human rights and fundamental freedoms had to be recognized, and this could entail, where appropriate, the right to choose nationality.80 The Helsinki Final Act and the Charter of Paris recognized the right for self-determination to all peoples.81 In March 1992 Republika Srpska declared independence from Bosnia-Herzegovina. The independence was never recognized by the international community. There might not have been explicit rules on self-determination, as the Badinter Committee was of the opinion, but there were rules on recognition. These were however not invoked or even mentioned by the international community or the mediators. During the Contact Group negotiations in autumn 1994 Redman negotiated directly with Pale, the government of Republika Srpska. To be in contact with the Bosnian Serb leadership provided it with a degree of legitimacy that the leadership had desired for a long time.82 In June 1995 however the mediating diplomats were so fed up with the uncooperative attitude, to put it gently, of the Bosnian Serbs that they refused to have them back at the table. Dayton mediator Holbrooke made clear to Milošević that since Karadžić and Mladić were indicted war criminals, they could not participate in any international peace conference. This is an example of the basic layer of human rights influence from the mediator’s side. Milošević should become the interlocutor for the negotiations “in order to avoid the need to deal with the madmen of Pale.”83
He managed to secure an agreement, the ‘Patriarch Paper’, which authorized Milošević to sign any peace agreement on behalf of Republika Srpska.84 Republika Srpska was nevertheless allowed to send other delegates to Dayton; their signature was a requisite for some of the annexes to the agreement.85
The only reason the leaders of Republika Srpska could be treated like this, was because Milošević, ‘the master’, controlled them. Even though Republika Srpska was officially bypassed by the Patriarch Paper and Karadžić and Mladić were not even allowed to be in Dayton, the self-proclaimed Republic was still allowed and apparently willing to send
80 See annex or supra n. 26 for Opinion #2 of the Arbitration Commission
81 <http://www.osce.org/mc/39501> and <http://www.osce.org/node/39516> both accessed 3 June
2016
82 Ivo H. Daalder, Getting to Dayton (Brookings Institution Press 2000) 35 83 Ibid., 97
84 Ibid., 128-129; Richard Holbrooke, To End a War (Random House 1998) 105-6; 116; 151 85 Richard Holbrooke, To End a War (Random House 1998) 135; 148; 183; 243
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delegates. It seems that the Dayton mediators did not dare to take strong position with regard to the position of Republika Srpska, which makes me consider the event a power play in which the role of PIL was more limited than it could have been.
IV.II Pacta sunt servanda
Pacta sunt servanda, ‘agreements are to be kept’, entails that agreements have the weight of
law between parties; non-compliance is a breach of contract. The reality was that often pacta
non erant servanda. Ahrens writes: “All parties from Zagreb to Skopje ignored, with the
greatest nonchalance, agreements into which they had entered.”86
Because of the international community’s tolerance of these breaches of agreement, the Yugoslav parties’ readiness to sign agreements they had previously decided to break was notorious.87 The legal principle apparently was of no value to the parties.
However, at other moments, a certain respect for the legal principle was visible: Milošević refused to sign CCPA part I because of the rights granted to minorities in that agreement. If agreements were indeed of no value, he could have easily signed it.88 Apparently the binding force of this agreement was of more weight to him than other agreements.
Even though only occasionally the legal principle was respected, it might well be that although they did not obey it, they believed they should, as became clear in the conversation between Milošević and Tuđman about the granting of minority rights:89
This confirmed that parties did not deny the rules of PIL but rather violated them. This distinction is insignificant from a practical point of view; at the end of the day the rules were disobeyed. However it is of relevance to value PIL, since PIL exists by the grace of recognition by parties.
IV.III Rights of refugees/displaced persons
During the mediations refugee rights were never a topic as such, in contrast to the subject of minority rights, as discussed above. An explanation for this is that minority rights are a somewhat less laden subject: It is a fact that there were minorities living in all the former Yugoslav states. However the topic of refugee rights relates directly to the grotesque violations of ICL. In order to keep the mediations going it would be impolitic to ruin the
86 Geert-Hinrich Ahrens, Diplomacy on the Edge (Johns Hopkins University Press 2007) 498 87 Ibid., 532
88 See chapter III, §I.I 89 See chapter III, §I.II
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atmosphere by confronting the presidents with their deeds. Again political considerations trumped legal questions.
IV.IV Sub-conclusion 3
When it comes to the right to self-determination of Republika Srpska, what strikes is that recognition was never discussed. A juridical way of dealing with this would have been to, just as with the other states, apply the Montevideo criteria. PIL remained absent here. A basic layer of human rights appreciation was visible at the mediator’s side, when was made clear to Karadžić and Mladić that they were not welcome in Dayton. However the ditching of Republika Srpska was mainly a power play; PIL had little to do with it. The principle of pacta
sunt servanda is only occasionally respected by the parties. It might however well be that
although they did not obey the principle, they believed they should. At moments it became visible that parties did not deny the rules of PIL but rather ignored them. The way the topic of refugees and displaced persons was dealt with is again an example of political considerations trumping legal questions.
V. Analysis of the role of PIL in the four mediation attempts’ outcomes
In this paragraph I will compare and contrast the peace agreements to reveal the role of PIL.
V.I The failure of the one, the success of the other mediation
CPPA part I failed because in this agreement not only minority rights were granted, but even a special status for minorities. This was a bridge too far for Milošević, whose main concern was to keep Kosovo as a Serb province.90 CCPA part II, the VOPP, HMS Invincible (and even almost Dayton) failed because the Bosnian president Izetbegović refused to sign or withdrew his signature. Dividing BiH was unimaginable for him, because of the mixed composition of the country and because it would ratify and legitimize the fruits of ethnic cleansing. He used the same argument for his rejection of the HMS Invincible Package: He wanted to regain towns that used to be Muslim towns before the war. Dayton finally succeeded because Izetbegović was forced to give up some land. The Dayton agreement was acceptable for Milošević because - especially compared to CCPA part I - little attention was paid to minority rights. It is striking that although the role of PIL during the mediations was so limited, the reasons for refusal of the peace agreements were mainly based on PIL arguments.
V.II Striking elements of the peace agreements
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When it comes to treaties of IHL/ICL, only the Geneva Conventions are mentioned. An explanation for the little attention paid to IHL/ICL is, as said before, the establishment of the ICTY and the mediators’ preference to keep their work separated from that of the ICTY. On the other hand, it is in fact quite common in peace agreements to not look backward but forward and pay little attention to IHL/ICL: the future of the state is what matters most. In this regard amnesty is relevant: very often in peace agreements amnesty is granted, even for severe war crimes. However, in none of the peace agreements examined here that is the case. None of the parties raised the question of negotiating for an amnesty or pardon.91 Amnesty is mentioned in the Dayton agreement, but only for crimes other than serious violations of IHL. This relates to the principle of iniuria ius non oritur in its broadest sense: Although this principle was not a part of any of the agreements, not granting amnesty, not even discussing the possibility of it, shows that there was a certain basic layer of PIL influence: grotesque violations of ICL were not going to be ‘forgiven and forgotten’.
It is interesting to note that in the HMS Invincible Package a military agreement was signed not by the heads of state but by the military commanders, including Mladić. Although this did not occur in the general framework agreement but in its annexes, it draws attention because it is at odds with the prevailing idea within PIL that by doing so, one grants a non-state actor certain legitimacy. In the Dayton agreement also a military agreement was signed, but this time not by the military commanders but by ‘representatives’. Who these were remains unknown, but it was certainly not Mladić since he was not allowed in Dayton.
Noteworthy is the fact that only in the Dayton agreement refugee rights were included, in accordance with the major human rights treaties and the London Principles. I assume that this is a topic that is only developed in the agreement if the end of the war is in sight. Dayton was not mediated in one session; the mediation lasted a couple of weeks. Once it became clear that this mediation would really mean the end of the Yugoslav war, such topics were included.
V.III Sub-conclusion 4
An explanation for the little attention paid to IHL/ICL is, as said before, the fact that the ICTY was established during the war. Amnesty had a very limited role throughout the whole mediation process. This shows a certain basic layer of PIL influence: the violators of ICL must not go unpunished. In the HMS Invincible Package military commanders signed parts of the agreement; this is a tension between the necessity to get as many people involved as
21
possible, hoping that they feel bound by the signed agreement, and the idea within PIL that by doing so, a non-state actor is granted certain legitimacy. Although the role of PIL during the mediations was so limited, the reasons to reject the peace agreements were mainly based on PIL arguments. It strikes that only in the Dayton agreement refugee rights were included. I assume that rights of refugees are only dealt with in the final stages of a mediation process; only Dayton made it that far.
V.IV An overview of the PIL elements in the peace agreements
The below mentioned peace agreements can be found in separate files as annexes to this thesis. They are also aggregated in the ICTY Official Papers collection.92
PIL influence ↓ agreements →
C arr ingt on -C uti leiro Dr aft Convention C arr ingt on -C uti leiro S tate ment of P rinc ipl es ICF Y Lo ndon P rinc ipl es Va nc e -Ow en P ea ce P lan HMS Inv incib le P ac ka g e Da yton Agr ee ment
General PIL; principles, norms and concepts of IL x93 x94 x95 x96 x97 x98
(Recognition of) independence x99 x100 x101 x102
secession, succession, dissolution x103 x104 x105 x106 x107
92 B.G. Ramcharan (ed.), The international conference on the former Yugoslavia: official papers (Kluwer Law
International 1997) 93 Art. 1 94 Art. A 95 4. Statement of Principles 96 Exordium of 58, 59, 61 97 62, 63, 64, 68, 69 98 77 lays the basis 99 Art. 1
100 Art. A: independence of BiH
101 4(viii): obligation to respect each other’s independence and sovereignty 102 77. Art. X
103 Art. 1: “sovereign and independent Republics”; “a common state of equal Republics for those Republics
which wish to remain a common state”
104 4(ix): “succession to the former SFRY”
105 Exordium of 58: “[…] successor states to the former Yugoslavia”
Influence of PIL in the mediation outcomes
22
borders / uti possidetis iuris x108 x109 x110 x111 x112 x113
pacta sunt servanda (reference to earlier signed
documents)
x114 x115 x116 x117
Ex iniuria ius non oritur (‘a legal right or entitlement
cannot arise from an unlawful act or omission’)
x118
constitutional framework/arrangements x119 x120 x121 x122 x123
membership UN x124 x125
establishment of arbitration committee/tribunal x126 x127 x128
reference to constituent treaties x129 x130 x131 x132 x133
reference to UN SC Resolutions x134 x135 x136 x137
IHRL x138 x139 x140 x141 x142 x143
106 Exordium to 63: “[…] successor states to the former Yugoslavia”; 63. Part I: The Union of Republics of
Bosnia and Herzegovina would succeed the Republic of BiH
107 86. Annex 4, art. I: “The Republic of BiH shall henceforth be BiH” > state succession 108 Art. 1: “within the existing borders”
109 Art. A: “continue to have its existing borders”
110 4(viii): “rejection of all efforts to […] change borders by force”
111 59; exordium to 61: borders of municipalities (opstina) stay as they are
112 62; “The agreed boundaries”: no uti possidetis iuris here, even the 'exchange of territories'; 64.
Appendix I, part II, art. 1; Annex A, part I to 64. Appendix I
113 77. Art III and 84. Annex 2 with its appendix. No uti possidetis iuris for inside borders. Outside borders
stay the same; 77. Art. X
114 Art. B: reference to the draft Convention
115 4(i): “[...] all parties [...] should respect agreed ceasefires […]” and 4(xiii): “[…] ensure the full
implementation of all agreements reached […]”
116 Exordium of 58: reference to London Statement of Principles
117 Exordium of 63: reference to London Statement of Principles; 68. Appendix V exordium and 69.
Appendix VI exordium:: reference to London Principles
118 4(ii): “non-recognition of all advantages gained by force or fait accompli” and 4(viii) 119 Art. 6, 6a, 11
120 Art. C
121 58, part I: constitutional framework; 61: interim governmental arrangements
122 63, part I: constitutional agreement; 64. Appendix I, specifically part VII; 65. Appendix II 123 77. Art. V and 86. Annex 4
124 63, part I sub (e): the Union of BiH will continue as a member of the UN; 64. Appendix I, part I, art. 1 125 86. Annex 4, art. I
126 Art. 12: Badinter Arbitration Committee 127 Art. C sub 4: “a special tribunal”
128 77. Art. VI and 87. Annex 5: “… to engage in binding arbitration to resolve disputes between [the
Federation of Bosnia and Herzegovina and the Republika Srpska].”
129 Art. 2: Charter of Paris, Helsinki Final Act
130 4(iv), (v) and (viii): UN Charter; Charter of Paris, Helsinki Final Act 131 Exordium of 58
132 Exordium of 63
133 77. Art. I: UN Charter; Helsinki Final Act, other documents of the OSCE 134 4(x)
135 Exordium of 58; exordium of 60
136 Exordium to 63; 63 part I sub (e); exordium to 66. Appendix III, part 1
23
right to self-determination x144 x145
rights of minorities/ethnic groups x146 x147 x148 x149
special status of autonomy for persons of an ethnic group
x150
Rights of refugees/displaced persons x151 x152
elections x153 x154 x155 x156 x157
establishment of national HR tribunal/court/commission x158 x159 x160
reference to IHRL treaties x161 x162 x163 x164 x165
IHL/ICL x166 x167 x168 x169 x170
cessation of hostilities ( + withdrawal of 'heavy x171 x172 x173 x174 x175
138 Art. 2
139 Art. B 140 4(iv) and (v)
141 Exordium of 58; 58 part I sub (8) 142 64. Appendix I, part V
143 77. Art. VII and 88. Annex 6 and 89. Annex 7; 86. Annex 4, art. II 144 Art. 2
145 4(v) 146 Art. 2 147 4(v)
148 58 part I sub (1) and (4)
149 Not explicitly mentioned, only included in list of human rights treaties, annex C to 64. Appendix I 150 Art. 2 sub c
151 4(vi)
152 86. Annex 4 art. 2 and 89. Annex 7
153 Art. 2: mentioned as a general human right 154 Art. B
155 58, part I sub (5); exordium of 61; 61 part II 156 63 part VII
157 77. Art. IV and 85. Annex 3 158 Art. 7: A Court of Human Rights
159 64. Appendix I, part III, art. 4 (iii) and 64. Appendix I, annex B: The Human Rights Court of BiH 160 88. Annex 6, chapter two
161 Art. 2: among others: Universal Declaration of Human Rights; ICCPR; ICESCR; ECHR
162 4(iv): ICCPR; ICESCR; ECHR + protocols + other instruments of UN; CSCE; Council of Europe 163 Exordium of 58
164 Exordium to 63; 64. Appendix I, part V, art. 3; annex C to 64. Appendix I (19 instruments). HR treaties
in HMS, not in Dayton: numbers 2, 4, 9, 13, 14, 15, 16. In HMS more attention is paid to minority rights
165 Annex I to 86. Annex 4 (15 instruments). HR treaties in Dayton, not in HMS: numbers 13, 14, 15 166 Annexe (sic) 1
167 4(i)
168 58 part I sub (7); annexes I, IV, V and VI to 60 169 64-66
170 78. Annex 1-A and 93. Annex 11
171 Annexe (sic) 1: “[…] refrain from violence” 172 4(i): “cease fighting and the use of force”
173 58, part I sub (7); Annex I to 60: which includes, inter alia, the demilitarization of Sarajevo and the
separation of forces
174 64. Appendix I, part I, art. 4; 66. Appendix III, part 1 exordium and art. 1; 66. Appendix III, part 2, art II
