ii. Bosnia and Herzegovina as a protectorate?

Due to the strong international presence in the constitutional system of Bosnia and Herzegovina, this country is openly referred to as a “protectorate”,³³⁵⁵ or – after making this expression relative, which is politically more correct – it is called a “de facto”³³⁵⁶ or as a “subsidiary de facto-protectorate”,³³⁵⁷ or a “quasi”³³⁵⁸ or “semi- protectorate”³³⁵⁹ of the international community. According to the usual definition, the notion of “protectorate” cannot be applied to Bosnia and Herzegovina for three reasons: first, the international administrator is not a single state but the “international community”. Secondly, unlike the conventional protectorate, the foreign affairs of BiH are in the hands of domestic State authorities and numerous internal affairs are under the control of an external administrator. Therefore, it seems that it is more appropriate to compare the situation in BiH with the modern concept of trusteeship within the meaning of the UN Charter.³³⁶⁰ Finally, Article I.1, in conjunction with line 6 of the Preamble of the BiH Constitution, defines Bosnia and Herzegovina as a sovereign state. Furthermore, apart from the individual cases of power sharing among international members in domestic organisations, there are no other elements in the BiH Constitution indicating that the country has waived its sovereignty.

After the initial decisive measures, the seemingly unlimited authorities of the High Representative have been immediately questioned, not only by the affected persons, but also by some political opinions and international observers. Hayden³³⁶¹ formulates this authority in a very provocative manner: “The method selected by the HR to promote ‘democracy’ in Bosnia is to create a dictatorship of virtue. Ironically, the course chosen by the HR seems most similar to that of the communist regimes of the former Yugoslavia, a coincidence that may bode ill for the future of Bosnia”.³³⁶² Yet, an open and public debate about the High Representative actually started as a reaction to the previously mentioned fierce criticism in an article which was published in the “Journal of Democracy”. In the “Travails of the European Raj” it is stated that there is “an astonishing similarity between the rule of the High Representative in Bosnia and Herzegovina and good-natured despots from the time of British liberal colonialism in India in the 19^th century.”³³⁶³ In this context, the High Representative pointed to two essential differences: firstly, the international community gains no profit from Bosnia and Herzegovina. Since as early as 1995 the international community has been investing its funds into the country’s reconstruction and around 17 billion US dollars have been invested so far; secondly, his mandate is based on the Dayton Agreement, which means on the agreement of the Parties involved in the BiH conflict. Moreover, the possibility for time-limited interventions is still required.³³⁶⁴ There are different views about this issue in Bosnia and Herzegovina depending on the ethnic affiliation of the observer. Whilst the Bosnian Serbs³³⁶⁵ would rather give up further intervention, Bosniaks are of the opinion that the High Representative does not use his authorities sufficiently.³³⁶⁶ Some observers have expressed their concerns that the debate about the High Representative’s mandate (which is, indeed, often conducted based on unfounded knowledge of the situation in BiH³³⁶⁷) is misused for the purpose of undermining and weakening the reputation of the High Representative.³³⁶⁸ In the meantime, the analysts have confirmed the seemingly paradoxical presumption that a temporary strengthening of interventionism is required for the purpose of withdrawing the international forces from BiH as soon as possible.³³⁶⁹

During the mandate of Lord Ashdown, the international community introduced a completely new component into the strategy of peace agreement implementation: the long-term target being the integration of the country into the European Union and the mid-term target is the entry of the country into the transatlantic security framework. Thus, in the 2004 Mission Implementation Plan (MIP),³³⁷⁰ the High Representative defined his major goal, stating that it is necessary “to ensure that Bosnia and Herzegovina is a peaceful, viable state on course to European integration”. The MIP set out six core tasks and a series of lower level programmes aimed at accelerating the development of Bosnia and Herzegovina according to the Stabilisation and Association Agreement (with EU), which includes the following goals: entrenching the rule of law, ensuring that extreme nationalists, war criminals, and their organised criminal networks cannot reverse peace implementation; reforming the economy; strengthening the capacity of BiH’s governing institutions, especially at the State-level; establishing State-level civilian command and control over the armed forces, reform the security sector and pave the way for integration into the Euro-Atlantic framework; promoting the sustainable return of refugees and displaced persons.³³⁷¹

As described above, the change has occurred both in the political discussions and in the settling of accounts between the High Representative and his opponents in the country. The reforms were no longer carried out under the slogan “implementation of peace agreement”, but they have rather become a necessary requirement on the way to Europe and Transatlantic Alliance. The interconnecting of the peace implementation with this form of integration objectives does not arise from the text of the peace agreement. This interconnection indicated that the High Representative, at the end of his mandate, was moving in a “grey zone” in which the legality and legitimacy of his rule were brought into question because, according to his own statements, he was no longer undertaking important measures for the purpose of peace implementation only, but those decisions were also issued for the purpose of the country’s integration. However, those measures are in violation of the constitutional rights and constitutional principles, for the sake of which the international community was engaged in Bosnia and Herzegovina.³³⁷² We must agree with the opinion of International Community, which is a stakeholder or perhaps a leader of this policy, that the permanent peace in a country or region is possible only through an integration process leading to EU and NATO membership. The peace that would be achieved in Bosnia and Herzegovina through the integration process would also mean a continuation of the success achieved by the previous European integration processes performing similar tasks.³³⁷³