Dayton, Bosnia, and the limits of law.

• Author: Rubin, Alfred P.
• Position: Dayton Accord

In an attempt to create an American-style, multi-ethnic democracy in the Bosnia-Herzegovinian rump of the formerly multi-ethnic dictatorship of Yugoslavia, American negotiators brokered a complex series of formal undertakings known collectively as the Dayton Accord. This Accord was initialed by representatives of the Muslim-dominated Republic of Bosnia-Herzegovina, whose authority is rejected by its Serbian minority; by the Serb-dominated Federal Republic of Yugoslavia, which denies that it is involved in the Serb resistance to the nominal government of Bosnia-Herzegovina, but which was authorized by the leaders of that resistance to speak for them; by the Republic of Croatia; by a representative of the European Union; by the United States; and - apparently redundantly since they are members of the European Union - by France and the United Kingdom as well. This great abundance of initialing occurred on November 20, 1995, at Wright-Patterson Air Force Base near Dayton, Ohio, and was later rendered legally binding by a formal signing in Paris on December 14 of that year.

As written, the Accord presumes that a legal authority resides in the United Nations Security Council to act in cases of internal conflict. It assumes further that enforcement of the international laws of war by the community of nations is consistent with the current international legal order of separate states. Both bases for supposing the Dayton Accord to be legally binding are dubious.

Under the United Nations Charter, itself a binding treaty, the Security Council can require action from the members of the United Nations in accordance with judgments rendered by the International Court of Justice (Article 94.2), as well as in reaction to a "threat to the peace, breach of the peace, or act of aggression" (Article 39). But the war crimes tribunal at The Hague is not the International Court of Justice (ICJ). Aside from a preliminary judgment in July 1996 accepting jurisdiction in a case against the Federal Republic of Yugoslavia by the Republic of Bosnia and Herzegovina, not to be argued in substance until 1997, the ICJ has uttered no judgment whose implementation in the Balkan area is in question. Moreover, unless the Security Council itself makes a determination relevant to international peace and security, no organ of the United Nations is authorized by the Charter to "intervene in matters which are essentially within the domestic jurisdiction of any state" (Article 2.7).

Suppose the military struggle within the Bosnian "state" were legally a "civil war", as indeed seems to be the case. To assert that a civil war is by its nature a threat to international peace and security - however distasteful its rationales might seem to those standing outside the struggle, and however much governed it may (or may not) be by the laws of war observed internationally - is to try to make revolution illegal. If all states were well-governed today, or if stability were the overriding aim of international politics, such a proposition might be desirable. But as things are, that seems ill-based. Certainly, the Bosnian armed struggle itself cannot be called "international" by those who argue that a Bosnia-Herzegovina that incorporates its former Serb population with its designated territory preserves a historical unity. Nor, except in an inconsistent attempt to gain legal control over it, have the parties to the Dayton Accord accepted the international personality of the "Republika Srpska", the Serb organization fighting for independence in the territory of Bosnia-Herzegovina; and that organization is not represented in the United Nations, except by the very government against which it is rebelling. The government of the Serb-dominated Federal Republic of Yugoslavia denied that it represents the Bosnian Serbs in the United Nations, and says that it does not want to expand at the further expense of Bosnia-Herzegovina.

Nonetheless, the Security Council acted. It determined that the conflict in Bosnia was a threat to "international" peace and security.

If the Security Council, by its own vote, can categorize events in such ways as to avoid limits on its own authority placed there by those submitting to that authority, a radical change in the structure of the United Nations will have been achieved. It is a change that few members of the United Nations would agree to, other than the five great powers that have the protection provided by vetoes in the Security Council. If the Security Council were to use the case of former Yugoslavia as a precedent, defections from the United Nations might well result, threatening collapse of the organization as a whole. The alternative - regarding the case of the former Yugoslavia as unique - undermines the universality of the rule of law and the notion of the sovereign equality of states on which the organization is based (UN Charter, Articles 1.1 and 2.1). It is very difficult to understand how the...