Bosnia and Herzegovina: One or two notions of justice?

Dr. Zlatko Hadžidedić

● Member of International Institute IFIMES

 

The International Institute for Middle East and Balkan studies (IFIMES) based in Ljubljana, Slovenia, analyzes developments in the Middle East and the Balkans on a regular basis.  Dr. Zlatko Hadžidedić, member of the International institute IFIMES, in his article titled “Bosnia and Herzegovina: One or two notions of justice?” presents his view on two concepts of justice and law – the continental and Anglo-Saxon ones – which constitute two mutually conflicting legal systems in Bosnia and Herzegovina. We are publishing his article in full.

 

Bosnia and Herzegovina:

One or two notions of justice?

 

TWO CONCEPTS OF JUSTICE AND LAW

In Bosnia-Herzegovina, shaped by the Dayton Peace Agreement, two concepts of justice and law encounter and clash – the continental and Anglo-Saxon ones - constituting two mutually conflicting legal systems on the ground. The continental concept of justice and law had been inherited from the decades-long legal tradition established in the period of Bosnia and Herzegovina’s inclusion into the framework of the Austro-Hungarian Monarchy. This concept had not undergone any substantial changes up until the establishment of the post-Dayton constitutional and legal system, despite the fact that there had been a succession of state constructs and social systems on the soil of Bosnia-Herzegovina in the preceding 100 years (the Austro-Hungarian Monarchy, the Kingdom of Serbs, Croats and Slovenes/Kingdom of Yugoslavia, the Socialist Federal Republic of Yugoslavia, the Republic of Bosnia-Herzegovina). The Anglo-Saxon concept was introduced through the Dayton Peace Agreement (deriving from the spirit and logic of this concept), so with the very conclusion of the Agreement, whose Annex 4 represents the current Constitution of the country, this concept suppressed and marginalized the former continental concept.

In both legal concepts justice is understood as a balance. Justice is symbolized by the Goddess of Justice holding a pair of scales in her hand, whereby the state of balance depicts the state of justice. The continental concept is based on the hypothesis that justice is a metaphysical, universal category, which should apply in all societies, state systems and times. This metaphysical balance may be disturbed on a physical level, on the level of society, when a violation of the legal order occurs, thus creating the state of social non-balance i.e. non-justice. However, given that the legal order on the social i.e. physical level is established in accordance with the metaphysical concept of universal justice, the violation transcends the level of society and creates implications on the metaphysical level, thus disrupting the balance on the metaphysical scales of justice and creating the state of metaphysical non-balance i.e. non-justice, as a universal category. The balance on the scales symbolizing the state of metaphysical justice can be re-established by way of appropriate legal measures on the social i.e. physical level, whereby the prior state of non-balance i.e. non-justice is simultaneously eliminated on both physical and metaphysical levels. Taking into account that the concept of universal justice should apply in all societies, systems and times, legal measures establishing the state of balance i.e. justice on both physical and metaphysical levels should also be universally applicable, so as not to be subject to substantial changes on the level of individual societies or individual cases.

The Anglo-Saxon concept is based on the hypothesis that the balance on the scales of justice is a physical category, which exists solely on the social i.e. physical level, without implications on the metaphysical level. So, in the event that the balance on the scales of justice is disrupted, the state of non-balance i.e. non-justice occurs exclusively on the social i.e. physical level. What follows from this is that the state of social balance i.e. justice can be re-established through legal actions that bring the factors involved, individual and collective ones, to the state of mutual equilibrium. For, according to the logic of this concept of law and justice, once the factors involved establish their mutual equilibrium, i.e. the state in which their individual interests are reciprocally met, they at the same time establish the balance i.e. justice within society. That is why within this concept and within the legal system derived from it, in addition to legal measures that the state may forcibly impose for the purpose of preserving the legal order and the social balance, it is quite legitimate – indeed, desirable! – for the factors involved to re-establish a mutual balance through a mutual deal. This also re-creates the state of balance within society, that is, the state of justice, and given the fact that the mutual balance is in this way established voluntarily and that through the very act of deal the factors involved abandon further mutual disputes, this way has a clear moral and practical precedence over the establishment of the balance through a legal intervention of the state. This concept of justice has also been transferred to the sphere of international law: the balance on the level of international relations is primarily established through deals between the states involved, while it can also be imposed via legal, economic and military actions by multilateral factors such as the UN or by states that have the capacity to do so,.

 

DAYTON – THE AGREEMENT OF THE “WARRING PARTIES”

 

The Dayton Peace Agreement was designed on the basis of the Anglo-Saxon concept of justice and law, as a deal between de facto commanders (Alija Izetbegovic, Slobodan Milosevic, Franjo Tudjman) of de facto warring military forces. This deal ensued after the three-and-a-half-year war (from 1992 to 1995) on the territory of the Republic of Bosnia-Herzegovina in which the participants were the Army of Bosnia-Herzegovina and the armies of the two neighboring countries, the Federal Republic of Yugoslavia (at the time an internationally recognized state consisting of today’s internationally recognized states, the Republic of Serbia and the Republic of Montenegro) and the Republic of Croatia. In the course of those three and a half years, Bosnia-Herzegovina’s political circles and public (and also a part of the international public) had been expecting in vain an international military intervention which would stop the aggression by the neighboring countries on the Republic of Bosnia-Herzegovina and re-establish the international and internal balance. However, there was no military intervention nor any serious diplomatic or economic pressure on the aggressor states, either by multilateral organizations like the UN or NATO, or by the states that had the capacity for such actions, like the United States of America. Rather, all major international factors had been insisting for three and a half years on the thesis that the balance i.e. justice could only be re-established through conclusion of a mutual deal of the “warring parties” (in accordance with the Anglo-Saxon concept, which prefers a mutual deal to an intervention from a higher level), and that the only possible role of international factors was to be peace mediators in such a deal.

At last, the United States of America took the role of a direct organizer of peace negotiations and a deal between the “warring parties” was concluded with the signing of the Dayton Peace Agreement in November 1995. “The warring parties’ representatives” gained the mandate to conclude the deal in accordance with the Anglo-Saxon concept of justice and law, due to their effective control over the armed forces which were under their command and which were parties to the conflict. This applies equally to Izetbegovic as well as to Tudjman and Milosevic, who, according to the continental concept, de jure did not have the mandate to represent the “warring parties” or to sign the Agreement. Both Tudjman and Milosevic denied the involvement of the Republic Croatia and the Federal Republic of Yugoslavia (or the Republic of Serbia) in the war in Bosnia-Herzegovina, so the states that they represented de jure did not admit to having the status of subjects in the conflict, although they had it de facto. Milosevic was the president of Serbia, which did not have the status of an internationally recognized legal subject, so de jure he could not have the status of a negotiator in international negotiations. De jure, he did not even have the mandate to represent the Federal Republic of Yugoslavia, which had the status of an internationally recognized legal subject, although he wasthe de facto commander of its military forces. Izetbegovic, as the president of the collective Presidency of the Republic of Bosnia-Herzegovina, was de facto commanding its armed forces, although de jure he did not have the mandate given by the Parliament or the Presidency of the Republic of Bosnia-Herzegovina to negotiate a change in the previous constitutional order, nor to render it ineffective. Also, according to the Constitution of the Republic of Bosnia-Herzegovina, no one – not even its Presidency’s president – had the right to negotiate on the recognition of results of the aggression, carried out by the Federal Republic of Yugoslavia and the Republic of Croatia. Above all, the president of the Presidency of the Republic of Bosnia-Herzegovina de jure did not have the mandate to represent only one of its ethnic communities (Bosnian Muslims), although de facto he was treated as its representative at the negotiations, in the same manner as Milosevic and Tudjman, de jure representatives of Serbia and Croatia, were treated as de facto representatives of Bosnian Serbs and Bosnian Croats.      

Yet, according to the Anglo-Saxon concept of justice and law, the three of them got their legitimacy for mutual negotiations, treated by the organizer as peace negotiations of the “warring parties”, due to the de facto control over the armed forces they were effectively commanding. Thus the mutual relationship of the military forces under their de facto command, which existed de facto on the ground at a given time, was taken as a legitimate legal basis for negotiations on the re-establishment of the disrupted balance in internal relations on the territory of Republic of Bosnia-Herzegovina, and in mutual relations between the states involved, as well as within the overall international order. According to the pre-defined concept of negotiations, both the aggressor armies and the army which was defending the territorial integrity of the Republic of Bosnia-Herzegovina got an equal status of the “warring parties”, and their representatives had their legitimacy recognized based on the effective control over armed forces which at a given moment had an effective control of parts of the territory of the Republic of Bosnia-Herzegovina. In doing so, the entire continental concept of justice and law was abolished, while the occupation of the territory of the Republic of Bosnia-Herzegovina by the military forces of the Federal Republic of Yugoslavia and the Republic of Croatia was legalized and legitimized. This also legalized and legitimized all the consequences of that occupation, such as the ethnic cleansing, human casualties, material destruction, appropriation of the occupied territories, while the whole previous constitutional order of the Republic of Bosnia-Herzegovina was abolished.

LEGAL ORDER IN BOSNIA-HERZEGOVINA: A CONCEPTUALLY IMPOSSIBLE AND PRACTICALLY UNSUSTAINABLE HYBRID

With the conclusion and signing of the deal in Dayton, the Republic of Bosnia-Herzegovina had been transformed into Bosnia-Herzegovina, a state composed of two ethnically profiled entities. The territories of the entities had been defined on the basis of the territories effectively controlled by military forces of the “warring parties” at the moment of the beginning of the negotiations. Also, a condition set before the beginning of the negotiations by the so-called Contact Group (consisting of states that at the time had the biggest effective influence in international relations) was taken into account. According to that condition, the adequate balance between the “warring parties” (namely, the imagined state of justice and peace) could be established only when the size of the territories controlled by the “warring parties” (namely, the size of the imagined entities) reached the proportion of 51% to 49%. The entities got effective legal, political, economic and fiscal controls over the territories they physically encompassed, while institutions of the state were divested of those powers over the territories of the entities, and this has been permanently legalized and legitimized with the conclusion of the Dayton Agreement.

In its Preamble, the Dayton Agreement explicitly says that there is a legal continuity between the previous Republic of Bosnia-Herzegovina and the two-entity Bosnia-Herzegovina. However, what has been produced is the discontinuity with the continental concept of justice and law that had an exclusive status within the Republic of Bosnia-Herzegovina. For, with the signing of the Agreement, the Anglo-Saxon concept of justice and law was directly built into the legal foundations and the legal system of the two-entity state. This has established an insoluble logical and legal paradox: two mutually opposing concepts of justice and law have been artificially crossed, and the legal order in Bosnia-Herzegovina has been functioning ever since as their conceptually impossible and practically unsustainable hybrid.

For the sake of example it should be said that the laws, both at the level of the state and at the level of the entities, have been largely and with slight modifications taken over from the body of laws that were previously passed within the Assembly of the Republic of Bosnia-Herzegovina, or even earlier, within the Assembly of the Socialist Republic of Bosnia-Herzegovina. Also, the laws that from the moment of signing of the Dayton Agreement onwards have been adopted both by the state and entity assemblies were mainly derived from the same legal tradition. In accordance with that, the legal system in Bosnia-Herzegovina in the prosecutorial sphere follows the spirit of the law from the continental legal tradition and the continental concept of justice and law. However, due to the presence of international judges and externally sponsored and conducted trainings that domestic judges undergo on a daily basis, there is an ever increasing presence of the Anglo-Saxon concept and its spirit in the judicial sphere. This presence is not only reflected in the uniforms of judges taken over from the Anglo-Saxon tradition, but also in the way in which judgments are treated and pronounced. Of course, only direct participants can speak in greater detail about a multitude of paradoxes generated by this hybrid crossing of two logically and philosophically conflicting concepts and traditions who encounter these paradoxes in their legal practice within the system that was established in Bosnia-Herzegovina and its entities after the Dayton Agreement. Implications posed for Bosnia-Herzegovina itself by the incorporation of the Anglo-Saxon concept of justice and law in its constitutional foundations should be considered here.

DAYTON – A SYMMETRICAL POSITION OF THE AGGRESSOR AND THE VICTIM

Signatories of the Dayton Peace Agreement entered into mutual peace negotiations without defining whether the armed forces under their effective control acted on the territory of the Republic of Bosnia-Herzegovina in the role of aggressor or in the role of defender. They (together with the organizers of the peace negotiations) also did not set a precondition that the aggression had to be stopped and the aggressor forces had to withdraw completely from the territory of the Republic of Bosnia-Herzegovina before the beginning of the negotiations. In doing so they voluntarily accepted the roles of “warring parties” acting from the same, equal and symmetrical positions, and not from asymmetrical positions of the aggressor and the victim. Accordingly, the goal of the peace negotiations was re-defined as the establishment of the state of balance in which the “warring parties” would get control over parts of the territory of the Republic of Bosnia-Herzegovina in an appropriate symmetrical proportion (while these parts of the territory were legalized by the Agreement as entities). According to this pre-fixed proportion, 51% of the territory of the Republic of Bosnia-Herzegovina was to become the entity called the Federation of Bosnia-Herzegovina (which had been earlier proclaimed by the Washington Agreement dated 1994, when the territories under the effective control of the Army of BiH and the territories under the effective control of Croatian Army had been formally unified into a common military-administrative bloc). On the other hand, 49% of the territory of the Republic of Bosnia-Herzegovina under the effective control of the Army of Yugoslavia was to become the unitarily administered entity called Republika Srpska. Thus the partition of the territory of the Republic of Bosnia-Herzegovina became the actual subject of the peace negotiations, with a goal of trading the parts of the territory of the Republic of Bosnia-Herzegovina that had been previously taken control of militarily by the “warring parties”. It was only when the planned proportion i.e. balance between occupied territories (51:49%) was reached through such trading that the “warring parties” fulfilled the condition that had been previously defined as satisfactory for the establishment of a lasting balance and peace, so that their representatives could issue orders to finally stop further activities of the armed forces under their effective control. Thus, according to the condition pre-set at the beginning of the peace negotiations, the territory of the Republic of Bosnia-Herzegovina could be the only subject of symmetrical trade during the prospective conclusion of the deal and establishment of the balance between the “warring parties”. In this way, the peace negotiations were pre-defined as the trade of the parts of the territory for which the “warring parties” had previously waged an armed conflict, and not as the negotiations to halt the external aggression on the Republic of Bosnia-Herzegovina and withdraw aggressor troops from its territory. Thus, instead of a return to a status quo ante, the status quo produced by the external military aggression was adopted as the legitimate outcome of the negotiations. Ironically, negotiations on how to establish the balance between the “warring parties” were not even conducted in Dayton; rather, the balance was pre-stipulated as a 51:49% territorial partition of the Republic of Bosnia-Herzegovina, while the participants negotiated only the modalities to apply such a partition on the ground.

Having accepted to participate in negotiations defined in this way, the representatives of the “warring parties” had in advance accepted the thesis implied in such definition. According to this thesis, the state of non-balance i.e. non-justice in the Republic of Bosnia-Herzegovina was not caused by an external aggression on the part of the neighboring countries but rather by the lack of a clear internal division of its territory between its biggest ethnic communities. This means that the internal social balance i.e. justice could be achieved only by creating conditions for such territorial division. And it was possible to fulfill these conditions only by re-defining these ethnic communities as the “warring parties”, which would first start their mutual armed conflict for the purpose of occupying parts of the territory of the Republic of Bosnia-Herzegovina, aided by the aggression on the part of the neighboring countries, and then would conclude a peace agreement by dividing that territory among themselves, according to the proportion that balanced their territorial claims.  Thus the Federal Republic of Yugoslavia and the Republic of Croatia got the mandate to legitimately act through military and political means on behalf of the two of the three biggest ethnic communities in the Republic of Bosnia-Herzegovina, Bosnian Serbs and Bosnian Croats. At the same time, the peace mediators were systematically de-legitimizing the Republic of Bosnia-Herzegovina in their peace initiatives, reducing it to the territory intended to the third ethnic community, Bosnian Muslims. Thus, in the official discourse of peace mediators, officials of the Republic of Bosnia-Herzegovina were repeatedly treated as “representatives of Bosnian Muslims”, while the Army of Bosnia-Herzegovina was reduced to the “Bosnian Muslim army”. Through such peace initiatives the neighboring countries were relieved of the culpability and responsibility for the aggression on the Republic of Bosnia-Herzegovina and for the ethnic cleansing perpetrated against its population. Their aggression was implicitly legitimized as a catalyst for the establishment of the division of territory of the Republic of Bosnia-Herzegovina between its biggest ethnic communities, due to the fact that territorial and administrative separation between these ethnic communities (intermixed up until the beginning of the ethnic cleansing) was possible to make only through an armed aggression and ethnic cleansing. And according to the Anglo-Saxon concept of justice and law, it was necessary to circumscribe and separate these communities, so as to put them into position to establish the state of mutual balance, that is, the state of justice.

THE ANGLO-SAXON CONCEPT OF SOCIAL (IM)BALANCE

According to the Anglo-Saxon concept of social balance (which at the same time also represents a fundamental principle of the political doctrine of liberalism), only well-defined, circumscribed and separated entities can establish a mutual balance on the principle of mutual checks ‘n’ balances. The balance is possible only when each of these entities possesses the strength and potentials sufficient to check and balance the strength and potentials of the other ones and vice versa. In this way they prevent one another in their attempts to gain absolute power.[1]  In order to be able to check and balance one another, they have to be mutually clearly circumscribed and well-defined. Therefore, if one society has inter-mixed ethnic groups with no circumscribing, it is necessary to separate and territorially circumscribe them, and turn them into well-defined and mutually separated administrative entities, which will be checking and balancing one another. Due to the aggression on the Republic of Bosnia-Herzegovina and the ethnic cleansing, previously inter-mixed ethnic communities were isolated and administratively circumscribed in parts of its territory, and these parts of the territory were officially named entities. According to the Contact Group Plan, these entities were supposed to be able to successfully establish the principle of mutual checks ‘n’ balances, thereby establishing the mutual balance, once their separate territories reached the size in the proportion of 51:49%. Thus the logic of this Plan implicitly recognized the ethnic cleansing as a legitimate tool, given the fact that it was committed with the aim of permanent territorial division of the Republic of Bosnia-Herzegovina, accompanied by the establishment of permanent administrative separation of its biggest ethnic communities. All these implications were contained in the thesis, accepted in Dayton by all participants of the peace negotiations, that the social balance in the Republic of Bosnia-Herzegovina was denied by the absence of ethnic division and separation, and that due to it, its ethnic communities had been living for centuries in the state of non-balance i.e. non-justice.   

Based on this thesis, the aggression and ethnic cleansing have been implicitly and explicitly legitimized from 1992 up until today, not only on the part of aggressor states, but also on the part of peace mediators. All of them were repeatedly declaring alleged “ancient ethnic hatreds” between its biggest ethnic communities as the prime cause of the war in the Republic of Bosnia-Herzegovina. Regardless of the real situation on the ground, their assertions proceeded from the logic that “ancient ethnic hatreds” unavoidably existed between ethnic communities which had lived for centuries mutually intermingled and which, on account of that, could not establish the principle of mutual checks ‘n’ balances in their mutual relations. And without these checks ‘n’ balances between the major ethnic communities it was not possible to establish the state of balance i.e. justice within Bosnia-Herzegovina. Accordingly, both the aggressors and the peace mediators were imposing a balanced territorial division and administrative separation between the biggest ethnic communities, in order to finally establish the principle of checks ‘n’ balances in the latter’s mutual relations. Within their discourse, all that was leading to the establishment of conditions for a permanent territorial division and permanent administrative separation between ethnic communities got legitimacy a priori, as a means that is justified not only from the pragmatic point of view, for the purpose of establishing a momentary peace on the ground, but also as a means that is fair from the perspective of permanent social balance.

From that perspective, the aggression and ethnic cleansing did not disrupt the balance in the Republic of Bosnia-Herzegovina, nor the balance in international relations. On the contrary, the aggression against the Republic of Bosnia-Herzegovina could only lead to the establishment of internal social balance, which had not existed prior to it due to the absence of territorial and administrative divisions between its major ethnic communities.[2] And at the international level, the very existence of the Republic of Bosnia-Herzegovina – as a state in which an assumed state of non-balance existed between its major ethnic communities due to the lack of territorial and administrative separation between them – already disrupted the international balance. For, according to the presented legal-philosophical doctrine, international balance is created only by states whose internal social balance is established on the basis of checks ‘n’ balances. That is why both in terms of international balance and international justice, the aggression by the neighboring countries on the Republic of Bosnia-Herzegovina, with a view to creating permanent territorial and administrative separation between its ethnic communities, was not only justified but also fair. For, the aggression served as a catalyst for the alleged “ancient ethnic hatreds” to be turned into a “civil war”, which, again, served as a catalyst for a permanent territorial and administrative separation between the biggest ethnic communities and the establishment of their mutual relations on the principle of checks ‘n’ balances. According to such concept of social balance and such concept of justice and law, it is justifiable and fair to use all means leading to permanent separation and establishment of balance between those ethnic communities that lived for centuries with no delimitation or separation, without mutual checks ‘n’ balances, and therefore filled with alleged “ancient ethnic hatreds”. However, although the Dayton ethnic separation and formation of ethnic entities are fair according to this logic, they still do not have the quality of a permanent solution, but rather of a temporary one. The permanent and fair solution for Bosnia-Herzegovina would be only its final dissolution along the boundaries of the entities established by the ethnic cleansing. For only this would permanently exclude the possibility of a new intermingling between ethnic communities, that is, the possibility of generating “ancient ethnic hatreds” between them, that is, the possibility of re-creation of non-balance on the societal level.

However, according to the same logic, unilateral secession of either of the two entities is not to be treated as fair and therefore is not be desirable, given that no unilateral act leads to the state of balance on the level of the society or the region, or on the international level. On the contrary, according to the definition, any unilateral act leads to a non-balance on the social or international levels. In order to generate a balance and represent a just solution, the final dissolution should be the result of the mutual deal of legal subjects involved. In this case, these subjects may be institutions of ethnically based entities or non-institutional representatives of ethnic communities forming the entities. Given the fact that such representatives are the ones who previously gave their consent to form entities and its institutions, they still reserve the right to non-institutionally represent both their entities and their ethnic communities, as well as to negotiate on their behalf and possibly conclude mutual deals, provided that they have the capacity to achieve effective control over them. Thus, for example, the legitimacy of the so-called Prud agreement was not disputed and it did not fail due to the non-institutional framework within which it had been concluded (which, according to the continental concept of justice and law, makes it illegal and illegitimate), but rather due to the questionable capacity of involved representatives of ethnic communities to achieve effective control over communities they claimed to represent.[3]  And without such capacity that all involved “representatives of ethnic communities” would possess, their possible agreement on the final dissolution would also not get legitimacy nor recognition. Similarly, an act of unilateral secession should not be recognized as legitimate either, given that the final result of either actions would not be the establishment of a permanent state of balance i.e. justice, but rather just a generation of new cycles of non-balance and non-stability.

BETWEEN UTILITARIAN AND UNIVERSALISTIC CONCEPTS OF JUSTICE AND LAW

As already mentioned, within the continental concept the balance which constitutes justice is established on the metaphysical level, and such justice has a universal meaning. Of course, the state of non-balance i.e. non-justice has also such a universal meaning, while actions disrupting the balance on the metaphysical scales of justice are treated as unjust regardless of social circumstances in which they occur. This applies to all actions disrupting the balance on the metaphysical scales of justice, regardless of whether they significantly disrupt the balance on the level of society or even help to establish a certain social macro-balance between the most significant social factors involved. Thus, for instance, an agreement between representatives of the “warring parties” – regardless of whether they have effective control over forces in conflict or not – is not legitimate if it is achieved outside the institutional framework and if these representatives do not have a clear institutional mandate to represent factors that per se have the legality and legitimacy of legal subjects (like, for example, internationally recognized states do). Such a non-legitimate agreement would disrupt the universal, metaphysical balance constituted only by recognized legal subjects, which may be legitimately represented only by their institutionally recognized representatives. Also, within the concept of universal justice and non-justice, actions like ethnic cleansing could not be recognized as legitimate and just, regardless of whether they are used to establish a balance between involved social factors on a certain social macro-level. Regardless of whether a balanced social or a state structure might be established through such actions, violent expulsions of tens or hundreds of thousands of inhabitants from certain territories where they previously lived – as well as violent expulsions of individuals form their private property – would unavoidably disrupt the balance at the universal metaphysical scales of justice. Such actions would therefore be treated as non-justice and crime, both at the collective and individual levels. Similar to this, an aggression against an internationally recognized state would be treated as a universal, metaphysical non-justice, regardless of the constitutional order that might possibly be established within that state by means of such aggression.

All the aforementioned actions, and many more similar to them, took place in Bosnia-Herzegovina in the war period, from 1992 to 1995, and in the post-Dayton period, from 1995 to 2016. Among most of its residents and its legal experts these actions were treated in accordance with the continental concept of universal metaphysical justice, so they are mostly proclaimed as extremely unjust and legally untenable. However, if we take into account the preceding comparison of the two concepts of justice and law that were all the time clashing and conflicting in this country in the aforesaid time interval, it follows logically that these actions and the consequences they produce – physical and legal ones – still have a fundamental legitimacy within the framework of the other concept, the Anglo-Saxon concept of justice and law. It is primarily in this fact that one should look for a reason of their moral, political and legal acceptability and survival within the constellation of international relations dominated by the Anglo-Saxon concept of justice and law.

Ljubljana, August 30, 2016                                                                                

[1]Liberalism as a political doctrine was created in the centuries-old resistance to the doctrine of absolutism which by the end of the 17th century had an exclusive legitimacy in intra-state and inter-state relations in Europe. Absolutism was disputed for the first time in the English Revolution in 1688 by Protestant opponents of the king James II as well as by supporters of the republican system of government. Absolutism achieved its practical manifestation in the form of the absolutist empire, whereas liberalism achieved its manifestation in the form of the nation-state. Nations and their states were being created in the process of disintegration of empires, with the idea that sovereignty belongs to the people i.e. the nation, and not to the absolutist monarch. In this historical process, empires were divided between several nations, regardless of the fact whether these nations and their states were based on the ethnic or civic principles. This process implied the idea that states based on the national principle mutually keep in check each other's absolutist tendencies on the intra-state and inter-state levels and that these establish the mutual balance on the principle of mutual checks 'n' balances. This principle has evolved into the fundamental principle of the doctrine of liberalism both on the domestic policy and foreign policy fronts.

[2] (5) “Where the sentiment of nationality exists in any force, there is a prima facie case for uniting all the members of the nationality under the same government, and a government to themselves apart. This is merely saying that the question of government ought to be decided by the governed. One hardly knows what any division of the human race should be free to do, if not to determine, with which of the various collective bodies of human beings they choose to associate themselves. But, when a people are ripe for free institutions, there is a still more vital consideration. Free institutions are next to impossible in a country made up of different nationalities. Among a people without a fellow-feeling, especially if they read and speak different languages, the united public opinion, necessary to the working of representative government, cannot exist.” J.S. Mill, Considerations on Representative Government, ed. J.M. Robson (Toronto: University of Toronto Press, 1977), in Collected Works, vol. XIX, chap. XVI, p. 428.

 

[3]The Prud Agreement, as an attempt to move Bosnia-Herzegovina toward an agreed dissolution on the „step-by-step“ principle, was concluded between three party leaders (SNSD president Milorad Dodik, SDA president Sulejman Tihic and HDZBiH president Dragan Covic) who had pretensions to represent the three major ethnic communities. The legitimacy of Dodik, as the prime minister of Republika Srpska, was not called into question neither by the oppostion nor by the public in this entity, whereby his mandate to represent his ethnic community in non-institutional negotitiations was implicitly recognized. However, the legitimacies of Tihic and Covic were disputed by all competing parties and by the majority of media within the Federation of BiH, and only their mandates to represent their respective parties headed by them were recognized. According to the Anglo-Saxon concept of justice and law, this fact – and not the fact that they reached a non-institutional agreement – called into question the validity of the deal they reached.  



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