Imposing the ‘rule of law’: the lessons of bih for peacebuildingin iraq

Abstract

With the task of establishing a new set of regime structures in Iraq, many policy-makers have turned to the Bosnia and Herzegovina (BiH) experience for lessons in peacebuilding. The key lesson advocated by international officials has been the prioritization of the ‘rule of law’ rather than the focus on political processes and elections. It is held that while regular elections have merely reinforced the dominance of political elites hostile to reform, internationally-imposed legal changes have galvanized the peacebuilding process. This article challenges that perspective through focusing on three areas of legal activism in BiH: constitutional change, property return and employment laws. It suggests that the ‘rule of law’ approach sees legal or administrative solutions as a short cut to addressing political problems, fetishizing the legal framework at the same time as marginalizing the political sphere. Rather than more coercive external involvement in the form of pressures for more legislation and better law enforcement, the experience of BiH highlights the need for greater levels of political legitimacy, a need which runs counter to the logic of the ‘rule of law’ approach.

Notes

Paddy Ashdown, ‘Broken Communities, Shattered Lives: Winning the Savage War of Peace’, Speech to the International Rescue Committee, London, 19 June 2003, accessed at: http://intranet.theirc.org/docs/ashdown_lecture.pdf.

Paddy Ashdown, ‘Broken Communities, Shattered Lives: Winning the Savage War of Peace’, Speech to the International Rescue Committee, London, 19 June 2003, accessed at: http://intranet.theirc.org/docs/ashdown_lecture.pdf; see also Paddy Ashdown, ‘What Baghdad can learn from BiH’, Guardian, 22 April 2003. In the Office of the High Representative's 2002 mission statement, Jobs and Justice our Agenda, the OHR lays out the mission of the ‘rule of law’ as being the creation of a system of justice that operates in an equal, impartial and consistent manner across the whole of BiH, supported by a modernized system of governance and public administration and an efficient, effective and integrated law enforcement system capable of fighting crime and terrorism; accessed at: www.orh.int/pic/econ-rol-targets/pdf/jobs-and-justice.pdf.

Paddy Ashdown, ‘Broken Communities, Shattered Lives’ (see n.1 above).

Paddy Ashdown, ‘Broken Communities, Shattered Lives’ (see n.1 above).

See, for example, Mary Kaldor, New and Old Wars: Organized Violence in a Global Era Cambridge: Polity, 1999, pp.6–9; Martin Shaw, ‘War and Globality: the Role and Character of War in the Global Transition’, in Ho-won Jeong (ed.), The New Agenda for Peace Research, London: Ashgate, 1999, pp.61–80; see also Mark Duffield, Global Governance and the New Wars: the Merging of Development and Security, London: Zed Books, 2001.

R. Jeffrey Smith, ‘Kosovo Still Seethes as UN Official Nears Exit’, Washington Post, 18 Dec. 2000.

See, for example, Michael Ignatieff, Empire-Lite: Nation-Building in BiH, Kosovo and Afghanistan, London: Vintage, 2003 and Simon Chesterman, ‘Walking Softly in Afghanistan: The Future of UN State-Building’, Survival, Vol.44, No.3, 2002, pp.37–46.

Jeffrey Smith, ‘Now for Nation Change. Law and Order: The Military doesn't want to Touch it. Who Will?’, Washington Post, 13 April 2003; United States Institute of Peace, Establishing the Rule of Law in Iraq, Special Report 104, April 2003, accessed at: www.usip.org/pubs/specialreports/sr104.html.

Report of the Panel on UN Peace Operations, A/55/305-S/2000/809, §81, accessed at: www.un.org/peace/reports/peace_operations. See also, David Chandler, ‘The People-Centred Approach to Peace Operations: The New UN Agenda’, International Peacekeeping, Vol.8, No.1, 2001, p.1–19.

See, for example, United States Institute of Peace (n.8 above); A Review of Peace Operations: A Case for Change, London: Kings College and International Policy Institute, 2003.

‘After the War’, editorial, Washington Post, 24 Nov. 2002. Ashdown argues that the rule of law only became the administration's top priority in its sixth year, rather than in its first (in ‘Broken Communities, Shattered Lives’ (n.1 above). However, the transition to the active imposition of legislation and dismissal of elected representatives can be dated back to the Bonn meeting of the Peace Implementation Council in December 1997. See ‘Bonn Peace Implementation Conference 1997: “Bosnia and Herzegovina 1998: Self-Sustaining Structures”’, 10 Dec. 1997, Office of the High Representative, accessed at: www.oscebih.org/essentials/pdf/bonnpeace_implementation_council_eng.pdf. For further information see David Chandler, Bosnia: Faking Democracy after Dayton, London: Pluto Press, 1999.

Will Hutton, ‘Alone the US will fall’, Observer (London), 24 Aug. 2003.

‘Decision establishing interim procedures to protect vital interests of Constituent Peoples and Others, including freedom from Discrimination’, 11 Jan. 2001, Office of the High Representative, accessed at: www.ohr.int/decisions/statemattersdec/default.asp?content_id = 365; European Stability Initiative, ‘Imposing Constitutional Reform? The Case for Ownership: A Discussion Paper’, ESI BiH Report, No.13, Berlin/Sarajevo, 20 Mar. 2002, p.2.

‘Agreement on the Implementation of the Constituent Peoples' Decision of the Constitutional Court of Bosnia and Herzegovina’, 27 March 2002, Office of the High Representative, accessed at: www.ohr.int/ohr-dept/legal/const/default.asp?content_id = 7274.

Dragan Bisenić, ‘Interview: Wolfgang Petritsch, the High Representative in BiH: “New Solutions are not emergency measures for Balkans”’, Danas, 10 Apr. 2002, accessed at: www.ohr.int/ohr-dept/presso/pressi/default.asp?content_id = 7387.

‘Press Conference of the High Representative, Wolfgang Petritsch, on the Completion of the Constitutional Reform Process in Bosnia and Herzegovina's Entities’, 19 Apr. 2002, Office of the High Representative, accessed at www.ohr.int/ohr-dept/presso/pressb/default.asp?content_id = 7503.

‘Agreement’ (n.14 above), section available at 7274#2.

‘Agreement’ (n.14 above), section available at 7274#2., accessed at: ibid., 7274#3.

‘Agreement’ (n.14 above), section available at 7274#2., accessed at: ibid., 7274#3.

This heightened already existing problems of representation, see Chandler, Bosnia (n.11 above), pp.66–89. See also International Crisis Group, ‘The Continuing Challenge of Refugee Return in BiH and Herzegovina’, ICG Balkans Report, No.137, Sarajevo/Brussels, 13 Nov. 2002, p.26. For many BiH commentators the use of the 1991 census as a way of distributing political positions increases the legitimacy of the nationalist parties: ‘As if the dead can vote. And even if they could, as if they would be voting for them again. Why then elections, after all?’ Dzemal Sokolović, ‘Bosnia–Herzegovina Country Report’, in Wim van Meurs (ed.) South Eastern Europe: Weak States and Strong International Support, Prospects and Risks Beyond EU Enlargement, Vol.2, Opladen: Leske and Budrich/Bertelsmann Foundation, 2003.

See, David Chandler, ‘Anti-Corruption Strategies and Democratization in Bosnia–Herzegovina’, Democratization, Vol.9, No.2, 2002, pp.101–20.

See, for example, Florian Bieber, ‘Croat Self-Government in Bosnia–A Challenge for Dayton’, European Centre for Minority Issues, ECMI Brief, No.5, May 2001; International Crisis Group, ‘Turning Strife to Advantage: A Blueprint to Integrate the Croats in BiH and Herzegovina’, ICG Balkans Report, No.106, Sarajevo/Brussels, 20 Mar. 2001.

Turnout was 54.68 per cent, compared to 64.4 per cent in 2000 and, according to the OHR, ‘young people in particular did not vote’. ‘Report to the European Parliament by the OHR and EU Special Representative for BiH, July–December 2002’, OHR, 23 Dec. 2002, accessed at: www.ohr.int/archive/rep-eur-parl/default.asp?content_id = 30140.

The General Framework Agreement, Annex 7: ‘Agreement on Refugees and Displaced Persons’, accessed at: www.ohr.int.dpa/default.asp?content_id = 375.

Democratization Policy Institute, An Agenda for BiH's Next High Representative, 1 May 2002, p.12, accessed at: www.anonime.com/dpinstitute/europe/balkans/BiH_and_Herzegovina/20020501_BiH_agenda.pdf.

Democratization Policy Institute, An Agenda for BiH's Next High Representative, 1 May 2002, p.12, accessed at: www.anonime.com/dpinstitute/europe/balkans/BiH_and_Herzegovina/20020501_BiH_agenda.pdf.

See ‘[High Representative's] Decision suspending decision-making on claims to apartments in the Federation for which a permanent occupancy right was issued after 30 April 1991, and imposing a moratorium on sale of apartments to persons who acquired their occupancy right after 30 April’, Office of the High Representative, 5 Nov. 1998, accessed at: www.ohr.int/decisions/plipdec/default. asp?content_id = 151; ‘[High Representative's] Decision cancelling all permanent occupancy rights issued in the RS during and after the war in BIH and converting them into temporary occupancy rights’, Office of the High Representative, 14 April 1999, accessed at: www.ohr.int/decisions/plipdec/default.asp?content_id = 161.

In 1999 no less than 38 separate acts of legislation were imposed by the High Representative in the field of Property Laws, Return of Displaced Persons and Refugees and Reconciliation. See further: www.ohr.int/decisions/plipdec/default.asp?m = &yr = 1999.

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), p.9; A New Strategic Direction: Proposed Ways Ahead For Property Law Implementation in a Time of Decreasing IC Resources, Property Law Implementation Plan, 12 Sept. 2002, accessed at: www.ohr.int/decisions/plip/key-doc/default.asp?content_id = 27904.

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), p.1.

Daniela Heimerl, ‘The Return of the Refugees: Fiction and Reality’, paper presented at Fifth International Seminar, ‘Democracy And Human Rights In Multiethnic Societies’, Institute For Strengthening Democracy in BiH, Konjić, 8–12 July 2002.

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), p.11.

‘Amending the Law on Sale of Apartments with Occupancy Rights’, Office of the High Representative, 17 July 2001, accessed at: www.ohr.int/decisions/plipdec/default. asp?content_id = 129.

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), p.11.

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), p.10.

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), p.11.

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), p.11.

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), p.2.

There have also been major demographic shifts brought about the war and economic transformation which have little connection to concerns of being in a position of an ethnic minority. For example, many people from rural areas who moved to towns and cities for safety during the war have decided to stay put.

Dzemal Sokolović (n.20 above). Sokolovic cites a large Swedish government research project, undertaken in 2000. Bosnian refugees in Sweden were asked: ‘Do you want to return home?’ Only six per cent gave a positive response, 94 per cent said they want to stay in Sweden. When the Swedish government offered the six per cent an attractive financial support package to return, half of them refused. Of the three per cent who took up the offer many returned to Sweden within the year.

European Stability Initiative, From Dayton to Europe: Land, Development and the Future of Democratic Planning (draft version for circulation to OHR only), ESI, Berlin/Sarajevo, 12 Dec. 2002, p.14.

This approach – whereby post-conflict legislators attempt to compensate victims and not perpetrators – forgets, as Rama Mani's comparative study notes, first, that these two groups overlap each other, and second, that post-conflict solutions depend not on the perpetuation of divisions but rather on the development of forward-looking approaches which focus on the ‘community of survivors’. See her authoritative Beyond Retribution: Seeking Justice in the Shadows of War, Cambridge: Polity, 2002.

‘Decision on re-allocation of socially owned land, superseding the 26 May 1999 and 30 December 1999 Decisions’, Office of the High Representative, 27 April 2000, accessed at: www.ohr.int/decisions/plipdec/default.asp?content_id = 123.

European Stability Initiative, From Dayton to Europe (n.41 above), pp.3–9.

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), p.13.

European Stability Initiative, From Dayton to Europe (n.41 above), p.3.

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), p.12. This is challenged by the European Stability Initiative report From Dayton to Europe which suggests that the provision of land and property for displaced persons in fact facilitates minority return by freeing up property and reducing ethnic tensions.

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), p.12. This is challenged by the European Stability Initiative report From Dayton to Europe which suggests that the provision of land and property for displaced persons in fact facilitates minority return by freeing up property and reducing ethnic tensions, p.39.

Nor one insisted upon by the Dayton Agreement itself which, under the constitutional rules of Annex 4, explicitly guarantees the ‘right to liberty of movement and residence’, accessed at: www.ohr.int/dpa/default.asp?content_id = 372.

European Stability Initiative, From Dayton to Europe (n.41 above), p.30.

‘Agreement’ (n.14 above), section available at: www.ohr.int/ohr-dept/legal/const/default.asp?content_id = 7274#4.

International Crisis Group, ‘Policing the Police in BiH: A Further Reform Agenda’, ICG Balkans Report, No.130, Sarajevo/Brussels, 10 May 2002.

European Stability Initiative, ‘Imposing Constitutional Reform?’ (n.13 above), p.5.

Jacques Paul Klein, ‘UN Security Council Briefing’, 19 June 2002.

See, for example, ‘Bosnia and Herzegovina in South-East Europe’, ch.5 in Michael Pugh and Neil Cooper with David Goodhand, War Economies in a Regional Context: Challenges of Transformation, Boulder CO: Lynne Rienner, 2004.

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), p.16.

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), pp.17, 28. The International Crisis Group states: ‘The practice of not issuing firearms to “minority” officers appears to be widespread. In Vlasenica, where there are 83 Serb police officers and four Bosniaks, none of the later has received side arms. The RS MUP argues that this is due to lack of funds, but has rejected a suggestion by IPTF to rotate firearms among officers on duty.’ International Crisis Group, ‘Policing the Police’ (n.52 above), p.41.

See for example, Gemma Collantes Celador, ‘International Civilian Police Missions in War-Torn Societies – From Theory to Practice in BiH and Kosovo’, paper presented at the Fifth International Seminar ‘Democracy and Human Rights in Multiethnic Societies, Institute for Strengthening Democracy in BiH, Konjić, 8–12 July 2002.

Alexandra Stiglmayer, Head of the OHR Press Office, ‘Constitutional Reform in BiH: RS is becoming multi-ethnic’, editorial, Jutarnje Novine, 15 Apr. 2002, accessed at: www.ohr.int/ohr-dept/presso/pressa/default.asp?content_id = 7397.

‘Press Conference’ (n.16 above).

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), p.38.

International Crisis Group, ‘The Continuing Challenge’ (n.20 above), p.38. Figures based on the contrast between 1991 census figures and current numbers of Bosniak inhabitants, assuming the overall population of the towns remains constant.

James Heartfield, The Death of the Subject Explained, Sheffield: Sheffield Hallam University, 2002, p.193.

Coalition Provisional Authority, Order No.1, ‘De-Baathification of Iraqi Society’, 15 May 2003, accessed at: www.cpa-iraq.org/regulations/CPAORD1.pdf; Jonathon Steele, ‘US decree strips thousands of their jobs’, Guardian, 30 Aug. 2003.

Coalition Provisional Authority, Order No.2, ‘Dissolution of Entities’, 23 May 2003, accessed at: www.cpa-iraq.org/regulations/CPAORD2.pdf.

Democratization Policy Institute (n.25 above), p.15.

Democratization Policy Institute (n.25 above), p.15.

Democratization Policy Institute (n.25 above), p.15.

Democratization Policy Institute (n.25 above), p.15.

Coalition Provisional Authority, Regulation No.6, ‘Governing Council of Iraq’, 13 July 2003, accessed at: www.cpa-iraq.org/regulations/REG6.pdf; Charles Clover, ‘Row mars first meeting of Iraq interim council’, Financial Times, 14 July 2003; Isam al-Khafaji, ‘I did not want to be a collaborator’, Guardian, 28 July 2003.

Albert. V. Dicey, Introduction to the Study of the Law of the Constitution, London: Macmillan, 1959, pp.202–3.

James Heartfield, ‘Rights and the Legal Subject’, unpublished Freedom and Law discussion paper, 1996.

Hannah Arendt, The Origins of Totalitarianism, New York: Harvest (new edn), 1979, pp.300–301.

David Chandler, ‘The Bureaucratic Gaze of International Human Rights Law: A Case Study of BiH’, paper presented at ‘The Legalisation of Human Rights: A Multidisciplinary Conference’, Clore Management Centre, University College London, 25–26 April 2003.

Edward H. Carr, The Twenty Years Crisis, 1919–1939: An Introduction to the Study of International Relations, London: Palgrave, 2001, p.165.

Edward H. Carr, The Twenty Years Crisis, 1919–1939: An Introduction to the Study of International Relations, London: Palgrave, 2001, p.166.

The limitations of the view that the imposition of ‘the rule of law’ could be a solution to security problems were highlighted by growing instability in Iraq and Afghanistan in August 2003. See for example, ‘Remember Afghanistan?’, editorial, Guardian, 19 Aug. 2003; and responses to the bomb at the UN headquarters in Baghdad which resulted in the tragic death of the head of mission, UN Special Representative Sergio Vieira de Mello. In a sad irony, de Mello was one of the few high-level diplomats who had argued that greater political legitimacy could do more to promote security than more law-making or military and police re-enforcements. See James Bone, ‘Dashing diplomat favoured by Bush’, The Times, 20 Aug. 2003; and, in particular, Jonathon Steele, ‘De Mello knew sovereignty, not security, was the issue’, Guardian, 21 Aug. 2003.

See, for example, Robert H. Jackson, Quasi-states: Sovereignty, International Relations and the Third World, Cambridge: Cambridge University Press, 1990, pp.95–8.

The report of the International Commission on Intervention and State Sovereignty (ICISS) notes that the shift towards international administrations and the weakening of the doctrine of state sovereignty, particularly for smaller, non-Western powers, is ‘comparable to decolonization, but operating in reverse gear’, ICISS, The Responsibility to Protect: Research, Bibliography, Background, Ottawa: International Development Research Centre, 2001, p.199.