Professor Francis A. Boyle
TO: THE PEOPLE AND PARLIAMENT OF THE REPUBLIC OF BOSNIA AND HERZEGOVINA
FROM: PROFESSOR FRANCIS A. BOYLE SUBJECT: THE DAYTON AGREEMENT DATE: NOVEMBER 30, 1995
Introduction 1. I have now had the opportunity to study the Dayton documents. It is clear that Bosnia will lose 49% of its territory to the Serb aggressor forces. Even worse, however, the 30% of Bosnia now under control of the Government and the Armija will effectively cede its independence to NATO. NATO will become a belligerent occupation force that will be totally in control of the land where it is stationed. I can see why you might be prepared to give away 49% of Bosnia that you do not control. But I cannot understand why you would want to give away to NATO the 30% of Bosnia that you do control. In essence, the 30% of Bosnia that you do control will become the ward of NATO. You will have absolutely no independence at all. The NATO commander will have absolute dictatorial powers and the military force necessary to back up his decisions. The President, the Presidency and the Government will become nothing more than a puppet regime that will have to do whatever NATO tells them to do.
2. Thus, after all these years, after all of your suffering, after all you have accomplished, you will be effectively surrendering 49% of your territory to the Serbs, 20% of your territory to Tudjman, and 30% of your territory to NATO. Of course this decision is for you to make, not me. But your Army was not defeated in battle. It controls 30% of the territory of Bosnia. It makes absolutely no sense for the Army to surrender to NATO under the terms of the Dayton Agreement. These conclusions become clear from an analysis of the following elements of the Dayton Agreement:
Proximity Peace Talks, Wright-Patterson Airforce Base, Dayton, Ohio, November 1-21, 1995
General Framework Agreement for Peace in Bosnia and Herzegovina
3. The General Framework Agreement refers to “the Federal Republic of Yugoslavia,” not the Federal Republic of Yugoslavia (Serbia and Montenegro). This is yet another concession to the rump Yugoslavia that basically implies that the Federal Republic of Yugoslavia is the successor-in-law to the former Yugoslavia.
4. Article I already refers to “Bosnia and Herzegovina” instead of the Republic of Bosnia and Herzegovina. It appears from this phraseology that the Republic of Bosnia and Herzegovina will give way to something called “Bosnia and Herzegovina.” In other words, the Serbs will have accomplished their objectives of dissolving the Republic of Bosnia and Herzegovina, while obtaining formal recognition of Republika Srpska.
5. Article III explicitly refers to Republika Srpska. This has been another Serb objective all along, to obtain formal recognition of Republika Srpska.
6. Article V. It is a bit strange and unprecedented for the Republic of Croatia and the Federal Republic of Yugoslavia to “fully respect and promote fulfillment of the commitments made” in the new Constitution of Bosnia and Herzegovina. In other words, Croatia and the rump Yugoslavia have basically been made guarantors for the Constitution of Bosnia and Herzegovina. This is similar to what happened in Cyprus, where Turkey, Britain and Greece were guarantors. Of course the war ensued. 7. Article X says that the Federal Republic of Yugoslavia and the Republic of Bosnia and Herzegovina “recognize each other as sovereign independent states within their international borders.” Yet, this language does not constitute formal diplomatic recognition. This can only be done by means of the two governments exchanging ambassadors with each other. This is confirmed by the next language found in Article X: “Further aspects of their mutual recognition will be subject to subsequent discussions.” Hence there is still not the establishment of formal diplomatic relations between the Republic of Bosnia and Herzegovina and the Federal Republic of Yugoslavia. I doubt very seriously that Milosevic will ever exchange Ambassadors with, and thus formally recognize, the Republic of Bosnia and Herzegovina, which will be dissolved under the terms of the Dayton Agreement.
8. Article XI. The fact that this Agreement enters into force upon signature simply indicates that Holbrooke decided to ram it through immediately and then present it as a fait accompli to the Parliament of the Republic of Bosnia and Herzegovina.
Annexes: Annex 1-A: Agreement on the Military Aspects of the Peace Settlement
Article I. General Obligations
9. Obviously this Agreement attempts to treat NATO as if it were a “regional organization and arrangement” within the meaning of Chapter 8 of the United Nations Charter. But NATO is clearly not this. Rather, NATO is a collective self-defense arrangement organized under Article 51 of the Charter, which falls within Chapter 6. NATO has no authority under the terms of the United Nations Charter or the NATO Pact to engage in some type of international peace enforcement operation as described herein.
10. Arguably the United Nations Organization has authority to set up a peacekeeping operation such as UNPROFOR. But NATO does not.
11. 2(a). “Neither Entity shall threaten or use force against the other Entity, and under no circumstances shall any armed forces of either Entity enter into or stay within the territory of the other Entity without the consent of the government of the latter and of the Presidency of Bosnia and Herzegovina.” In other words, the Bosnian Armija cannot attack the Srpska Army under any circumstances.
12. 3. “Both Entities shall be held equally responsible for compliance herewith…” In other words, the Federation of Bosnia and Herzegovina and Republika Srpska are being treated as if they were de facto independent states. The Republic of Bosnia and Herzegovina is nowhere to be found here.
Article II. Cessation of Hostilities Article III. Withdrawal of Foreign Forces
13. This seems to require the withdrawal of military forces of the Republic of Croatia and the rump Yugoslavia within thirty days. And yet the Republic of Croatia and the rump Yugoslavia are not parties to this Annex. Rather, the only parties to this Annex are the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina, and the Republika Srpska. But there are side letters to that effect which will be discussed below.
14. There is established here a zone of separation between the forces that is four kilometers wide, that is two kilometers on either side of an agreed cease-fire line. Only IFOR is permitted in this agreed cease-fire zone of separation. In other words, this is a de facto carve-up of the Republic of Bosnia and Herzegovina along the cease-fire line that will be policed by IFOR.
III. Phase II, page 7
15. Here the document refers to “Inter-Entity Boundary Line”. So it is clear that they are talking about a boundary line here. In other words, once again, both Entities are being treated as if they were de facto states requiring the demarcation of a boundary line.
16. 4. General, page 8. Notice here that IFOR will demarcate the boundary line between the two Entities. So, once again, you have NATO/IFOR formally demarcating a border, thus creating two de facto independent states.
V. Phase III, page 9
17. 6. “…the IFOR has the right and is authorized to compel the removal, withdrawal, or relocation of specific Forces and weapons from, and to order the cessation of any activities in, any location in Bosnia and Herzegovina…” In other words, IFOR is going to run the entire country of Bosnia and Herzegovina. The rest of paragraph 6 gives IFOR the right to use military force toward that end.
18. Basically, therefore, IFOR will be in charge of the entire country, with the right to use military force anywhere it wants. It is hard to see what will be left then of the formal independence of the Federation of Bosnia and Herzegovina, let alone the Republic of Bosnia and Herzegovina.
Article VI. Deployment of the Implementation Force, page 11
The Security Council is supposed to establish IFOR acting under Chapter 7 of the United Nations Charter, which deals with enforcement action. Nevertheless, NATO still has no authority or competence to do this. Rather, it is simply a collective self-defense arrangement organized under Article 51, which is in Chapter 6.
3. IFOR can be called upon to assist the conduct of free and fair elections, to assist humanitarian organizations, to deal with refugees, etc. Page 12. In other words, it appears that IFOR will be drawn in to provide the military muscle necessary to do everything else in Bosnia and Herzegovina. This is directly contradictory to what Clinton is saying publicly about the limited role of NATO.
21. 5. Basically, the IFOR commander can do whatever he wants in Bosnia and Herzegovina. And paragraph 6 gives him the right to use military force. In other words, all of Bosnia and Herzegovina is going to be run by IFOR.
22. Page 13. Basically, IFOR will become the belligerent occupant of Bosnia and Herzegovina, with all the rights, privileges, and immunities thereof. And the IFOR commander has the right to use military force basically at his discretion.
23. Under these conditions, therefore, I do not understand how IFOR cannot get involved in so-called nation-building in Bosnia and Herzegovina.
24. Basically, under the terms of this Agreement, NATO will become the belligerent occupant of Bosnia and Herzegovina. It will therefore have the obligation under the Hague Regulations to maintain law and order. Consequently, the Bosnian government will be giving up whatever independence it currently exercises over the 30% of Bosnian territory that it now controls, as well as permanently surrendering away control over the 49% of Bosnian territory assigned to Republika Srpska. Under these circumstances, the President, the Presidency and the Parliament will become nothing more than a puppet regime that will have to do whatever ordered by IFOR.
Article VIII. Establishment of a Joint Military Commission
25. It seems to me that the Joint Military Commission will become the de facto government of Bosnia. Notice, however, that the Commission shall function as nothing more than a consultative body for the IFOR commander. Therefore, the IFOR commander runs all of Bosnia for all intents and purposes.
Article XII. Final Authority to Interpret
26. Basically, the IFOR commander has the legal authority to do whatever he wants to do. So in essence this Agreement is setting up a military dictatorship in Bosnia under the control of the IFOR commander.
Appendix B to Annex 1-A: Agreement Between the Republic of Bosnia and Herzegovina and the North Atlantic Organization (NATO) Concerning the Status of NATO and its Personnel
27. Basically, NATO personnel will be immune from the jurisdiction of the Republic of Bosnia and Herzegovina for whatever they might do. This NATO operation will be a law unto itself.
Agreement Between the Republic of Croatia and the North Atlantic Treaty Organization (NATO) Concerning the Status of NATO and its Personnel I have not read this document
Agreement Between the Federal Republic of Yugoslavia and the North Atlantic Treaty Organization (NATO) Concerning Transit Arrangements for Peace Plan Operations 29. I have not read this document.
Annex 1-B: Agreement on Regional Stabilization 30. This Agreement is between the Republic of Bosnia and Herzegovina, the Republic of Croatia, the Federal Republic of Yugoslavia, the Federation of Bosnia and Herzegovina and Republika Srpska. Article II(i)
31. Notice that this only talks about a military liaison mission between the chiefs of the armed forces of the Federation of Bosnia and Herzegovina and the Republika Srpska. In other words, the Army of the Republic of Bosnia and Herzegovina disappears. And the Armies of the Federation and Srpska are treated as Armies of de facto independent states. There is no joint command, only coordination, which will never happen.
32. Article IV, page 4. These arms ratios are totally inequitable. Basically, the rump Yugoslavia will have 75% plus the 10% given to Republika Srpska for a grand total of 85% of the baseline. The Republic of Croatia will have 30% of the baseline, whereas the Federation will have 20% of the baseline. I do not see how these ratios can create a stable peace in Bosnia or in the Balkans.
Annex 2. Agreement on Inter-Entity Boundary Line and Related Issues. 33. The establishment of an inter-entity boundary line between the Federation and Srpska will probably become permanent.
Article V. Arbitration for the Brcko Area Basically this puts the Brcko area on ice for the next year. Again, the whole purpose of this Dayton Agreement was for Clinton to get something in writing so that he could put the whole Bosnia issue on ice for the next year in order to move forward with his presidential election campaign without interference.
35. Also, right now I think it might be unlikely for the President of the International Court of Justice to appoint a third arbitrator when Bosnia has a case pending before the World Court against the rump Yugoslavia. Of course if and when Bosnia is forced to withdraw this lawsuit, then perhaps the President of the Court might be willing to discharge this obligation. They should have provided for some other alternative here besides the ICJ President.
Annex 3. Agreement on Elections 36. Page 2. Quite frankly I do not see how there can be real elections within nine months after entry into force of this Agreement under the current conditions. This requirement is a joke. All the Pale Serbs have to do is stall. The elections will never go forward in Republika Srpska in accordance with these requirements and under these conditions.
Article III. The Provisional Election Commission 37. It is for the Commission to impose penalties “against any person or body that violates such provisions.” But obviously this means nothing without IFOR enforcement.
Article IV. Eligibility “By Election Day, the return of refugees should already be underway, thus allowing many to participate in person in elections in Bosnia and Herzegovina.” This is a ridiculous statement. How can anyone take this at face value. 39. There is absolutely no way anyone is going to be able to organize democratic elections in Bosnia within the next ten months.
Annex 4. Constitution of Bosnia and Herzegovina 40. Continuation. It does appear from the language used here that the continuity of the state as an international legal person will continue, including Bosnia’s membership in the United Nations Organization. Of course the Serbs will be able to claim that “the Republic of Bosnia and Herzegovina” no longer exists and that this Agreement explicitly recognizes Republika Srpska. But unlike previous versions, this language appears to protect the legal existence of the State and its U.N. membership. The first draft language given by Holbrooke to President Izetbegovic on 5 November 1995 would have dissolved the Republic of Bosnia and Herzegovina as a state under international law. So much for his good faith. It was just as bad as what Owen tried to do at the Owen-Stoltenberg negotiations.
Article III. Responsibilities of and Relations Between the Institutions of Bosnia and Herzegovina and the Entities. Obviously, Defense is omitted from this list on purpose. Therefore, the central institutions will have no competence to deal with matters related to the defense of the State. Therefore, under paragraph 3, below, the two entities have responsibility for “defense”. Hence, the two entities—the Federation and Srpska—will become de facto independent states.
42. Effectively, then, the institutions of the currently-existing Republic of Bosnia and Herzegovina will go out of existence, and a limited number of institutions with limited competence might take their place. All other institutions must be agreed upon by Republika Srpska, which will never happen.
43. Article IV. Parliamentary Assembly. The House of Peoples will never work here because the Serb Delegates from Republic Srpska will simply absent themselves as a block on instructions from Pale.
Since the Pale Serbs can veto the operations of the House of Peoples, then they can also veto the operations of the Parliamentary Assembly.
Since the Pale Serbs can order their delegates to the House of Peoples to absent themselves, there will never be a quorum in the House of Peoples. Since there will never be a quorum, the House of Peoples cannot act lawfully, and therefore the Parliamentary Assembly cannot act lawfully. Thus nothing will get done against the wishes of the Pale Serbs.
46. These other provisions do not change the situation. Since the Pales Serbs have the right to prevent quorum, then no business can be transacted at all against their wishes.
47. Once again, by voting as a block, the delegates or members from Republika Srpska can effectively prevent any business from being transacted by the Parliamentary Assembly against their wishes.
48. Paragraph 4. Powers. Notice that the Parliamentary Assembly does not have the competence to actually levy, raise, or appropriate taxes or revenues. It can only do the “deciding upon the sources and amounts of revenues for the operations… .” In other words, it has no independent source of income. For this reason, it will be completely meaningless. It will be very similar to the first Articles of Confederation here in America that failed precisely for this reason. It was replaced by the Constitution of the United States of America that gave the Federal Congress the right to raise money by means of taxation, duties, imposts, etc. Without the power to tax, this Parliamentary Assembly will have no effective powers at all.
49. Article V. Presidency. Section 2(d) effectively gives the Pale Serbs a veto power over the operations of the Presidency. In other words, the Presidency will be able to do nothing against their wishes. It simply will not be able to operate.
50. Thus the Pale Serbs will even be able to prevent the Presidency from conducting the foreign policy of Bosnia and Herzegovina. Therefore, even that limited competence can be effectively forestalled by the Pale Serbs.
5. Standing Committee 51. Under this provision, the Bosniac member of the Presidency has control over the Bosnian Armija. The Croat member of the Presidency has the control over the HVO. And the Serb member of the Presidency has control over the Srpska Army. It does not appear that there will be any type of joint command or general staff for these three armies. Thus, the Srpska Army will remain intact as it currently is. If so, then that would undermine the paper guarantee of refugees and displaced persons to return to their homes. Why would a Bosniac or a Croat want to return to their homes under the occupation of the Srpska Army that is being commanded by the successors to Mladic and Karadzic? That refugee would have to be insane. The rest of the language in 5(a) guarantees the de facto partition of Bosnia and Herzegovina. The Standing Committee on Military Matters only has authority “to coordinate,” not to command. Therefore, the three armies (Armija, HVO, Srpska) will remain intact as is.
Article VI. Constitutional Court 54. This so-called protection in here giving the Constitutional Court the jurisdiction to decide on a “special parallel relationship” will not help. The Constitutional Court would certainly have to permit a “special parallel relationship” between Republika Srpska and the Republic of Serbia that is identical to the Confederation Agreement between the Republic of Croatia and the Federation of Bosnia and Herzegovina. But the conclusion of such a Confederation Agreement between Republika Srpska and the Republic of Serbia will be tantamount to a de facto, but not de jure, absorption of Republika Srpska by the Republic of Serbia. In other words, you will have a de facto, but not de jure, Greater Serbia that would include 49% of the territory of the Republic of Bosnia and Herzegovina.
55. It is also clear that the Constitutional Court has no authority to interfere when the Pale Serbs absent themselves so as to prevent the establishment of a quorum in the House of Peoples. Thus, there is no way the Constitutional Court can force the House of Peoples and therefore the Parliamentary Assembly to function and operate against the wishes of the Pale Serbs.
Article VII. The Central Bank
56. This provision provides that the Central Bank’s responsibility “will be determined by the Parliamentary Assembly.” But since the Pale Serbs have a veto power over the operations of the Parliamentary Assembly, this Central Bank will never be able to do anything effectively. That is made clear by the next sentence which makes it clear that the Central Bank cannot for a period of six years “extend credit by creating money.” And it can only get that authority when expressly granted by the Parliamentary Assembly, which will never occur because of the Pale Serb veto power. Thus there will be a Central Bank in name only.
Article VIII. Finances Basically, the Parliamentary Assembly will have no effective authority to raise revenue against the wishes of the Pale Serbs. Likewise, the Pale Serbs will simply refuse to provide the required one-third of the revenue of the Parliamentary Assembly. The fact that the Parliamentary Assembly must rely upon the Federation and Republic Srpska for its revenue is a fatal defect here. Once again, it is similar to the arrangement under the American Articles of Confederation whereby the Central Government had to rely upon the States to provide revenues to it. They never did it, which is why the Articles were replaced by the U.S. Constitution.
Article XII. Entry Into Force 58. “1. This Constitution shall enter into force upon signature of the General Framework Agreement as a constitutional act amending and superseding the Constitution of the Republic of Bosnia and Herzegovina.” This procedure is obviously unconstitutional under the current Constitution of the Republic of Bosnia and Herzegovina. Indeed, this new Constitution is not even required to be submitted to the Parliament of the Republic of Bosnia and Herzegovina. For all intents and purposes, this new Constitution has come into effect immediately in accordance with its terms without the approval of the Parliament of the Republic of Bosnia and Herzegovina and without following the amendment procedure in the current Constitution of the Republic of Bosnia and Herzegovina. In other words, under the terms of this Constitution, the Republic of Bosnia and Herzegovina, its Parliament, and all its institutions have basically gone out of existence as of November 22, 1995. That is the reason why they got rid of the name “Republic of Bosnia and Herzegovina” in Article I.
Annex II. Transitional Arrangements 1. Joint Interim Commission Notice here that the “Parties” established the Joint Interim Commission to implement the Constitution of Bosnia and Herzegovina. But the Parties are the Republic of Bosnia and Herzegovina, the Republic of Croatia, and the Federal Republic of Yugoslavia. Why should Croatia and the rump Yugoslavia have anything to say about the implementation of the Constitution for Bosnia and Herzegovina?
4. Offices 60. It appears that this language allows for the continuation of “governmental offices, institutions, and other bodies of Bosnia and Herzegovina” to operate “in accordance with applicable law” until superseded. Notice, however, that these offices and institutions are no longer operating in accordance with the Constitution of the Republic of Bosnia and Herzegovina. Also, it is not clear that this transitional provision would apply to the Parliament of the Republic of Bosnia and Herzegovina. The title “offices” would not seem to include Parliament itself.
Annex 5. Agreement on Arbitration 61. Basically, this Agreement requires arbitration between the Federation of Bosnia and Herzegovina and the Republika Srpska. The Republic of Bosnia and Herzegovina has nothing to do with it. Therefore, pursuant to this Agreement, the Federation and Srpska are being treated as if they were de facto independent states.
Annex 6. Agreement on Human Rights 62. Article I treats the Federation of Bosnia and Herzegovina and Republika Srpska as if they were de facto independent states with obligations under international human rights treaties. 63. Article III(2): “The salaries and expenses of the Commission and its staff shall be determined jointly by the parties and shall be borne by Bosnia and Herzegovina.” In other words, the Pale Serbs have a veto power over the operation of the Commission. Hence I doubt very seriously that this Commission will ever come into existence. Moreover, it is clear that the salaries and expenses will not be paid for by the Federation of Bosnia and Herzegovina and Republika Srpska. Rather, it says they will be paid for by “Bosnia and Herzegovina,” which cannot generate its own revenue. If they were serious about the Commission, they would require the expenses to be paid for by the Federation and Republika Srpska.
64. So this entire Annex on Human Rights Implementation and Machinery looks fine on paper. But since there is no provision for effective financing, I doubt very seriously that it will ever come into effective and meaningful operation.
Annex 7. Agreement on Refugees and Displaced Persons 65. Article I. This says nothing at all about who will be responsible for paying compensation to refugees for “any property that cannot be restored to them.”
Commission for Displaced Persons and Refugees 66. “2. The salaries and expenses of the Commission and its staff shall be determined jointly by the Parties and shall be borne equally by the Parties.” So here it is required that the Federation and Republika Srpska pay the expenses, as opposed to “Bosnia and Herzegovina” which is the case for the Human Rights Commission. Nevertheless, these matters must be “determined jointly by the Parties.” In other words, the Pale Serbs have been given a veto power over the establishment and operation of the Commission. Hence, I doubt very seriously that it will ever be able to operate effectively. 67. Article XII(2). The Commission has the power to award “just compensation as determined by the Commission.” But there is no effective mechanism here for this compensation to be paid. For example, there is no requirement that the Federation or especially Republika Srpska pay such compensation. If this provision were to have any meaning, clearly Republika Srpska would be required to pay “just compensation” for all the property it has destroyed. 68. Paragraph 6. This language about compensation bonds means nothing. There is no obligation here by anyone to honor these compensation bonds. 69. Article XIV. Property Fund. Once again, there is no fixed capital contribution for this Fund. So I doubt very seriously that anything will come of it, let alone the so-called compensation bonds. 70. Basically, this Fund will depend upon grants from the international community.
Annex 8. Agreement on Commission to Preserve National Monuments 71. Article III: “The salaries and expenses of the Commission and its staff shall be determined jointly by the Entities and shall be borne equally by them.” In other words, once again the Pale Serbs have a veto power over the function of this Commission. So it probably will never get off the ground. 72. This is a joke and a half that Republika Srpska has agreed to protect national monuments when in fact it has done everything possible to destroy them throughout Bosnia. This Annex is the height of hypocrisy and absurdity.
Annex 9. Agreement on Establishment of Bosnia and Herzegovina Public Corporations 73. In the Preamble, notice that the Republic of Bosnia and Herzegovina is no longer even mentioned. Under the new regime, the Republic of Bosnia and Herzegovina will disappear. Hence, the Federation and Republika Srpska are being treated as if they were de facto independent states here. 74. Article II(5). “Within 30 days after this Agreement enters into force, the Parties shall agree on sums of money to be contributed to the Transportation Corporation for its initial budget. …” In other words, once again, the Pale Serbs have a veto power over the operation of this Transportation Corporation, which means that it will probably never come into effective operation. This is nothing more than a mere paper corporation. 75. Article III. Other Public Corporations. This Article is the height of cynicism. Effectively it recognizes that the only public corporation set up was the transportation corporation, which is only on paper. There is not even an obligation to set up any other types of public corporations to deal with utilities, energy, post and communications. The establishment of these public corporations is subject to the veto power of the Pale Serbs, so they will never be set up.
Annex 10. Agreement on Civilian Implementation of the Peace Settlement Article V. Final Authority to Interpret. “The High Representative is the final authority in the theater regarding interpretation of this Agreement on the civilian implementation of the peace settlement.” In other words, the High Representative will basically run Bosnia and Herzegovina as he or she sees fit with respect to non-military matters. IFOR will have the power and authority to do whatever it wants with respect to military matters. Hence, there will be no real sovereign authority or control left to the Federation of Bosnia and Herzegovina or any of the Central Authorities for “Bosnia and Herzegovina.” The President, the Presidency, the Government, and the Parliament will constitute merely a puppet regime devoid of any real independence from NATO.
Annex 11. Agreement on International Police Task Force 77. Under this Annex it appears that the United Nations Organization is basically going to take over and assume supervisory jurisdiction for all domestic law enforcement activities within Bosnia. Therefore, the Bosnian government will basically lose control over this attribute of State sovereignty as well.
Agreement on Initialling the General Framework Agreement for Peace in Bosnia
Letter by Granic to Kinkel, November 21, 1995 78. Notice that in this letter the Republic of Bosnia and Herzegovina no longer exists. Granic for Croatia does not agree to respect “the sovereignty, territorial integrity and political independence of” the Republic of Bosnia and Herzegovina. The same applies to the other letters by him.
Letter by Milutinovic to Kinkel of 21 November 1995: Notice that the Federal Republic of Yugoslavia does not agree to respect “the sovereignty, territorial integrity and political independence of” the Republic of Bosnia and Herzegovina. The same applies to the other letters by him.
81. Concerning the letter by Granic to Boutros Ghali of 21 November 1995, I doubt very seriously that the Republic of Croatia “shall strictly refrain from introducing into or otherwise maintaining in Bosnia and Herzegovina any armed forces or other personnel with military capability.” The undoubted violation of this Agreement would arguably create a material breach of the Dayton Agreement that the Republic of Bosnia and Herzegovina could rely upon to pull out of the Dayton Agreement. The same argument applies to Granic’s other letters to the same effect.
82. Concerning the letter by Milutinovic to Boutros Ghali of 21 November 1995, I doubt very seriously that “the Federal Republic of Yugoslavia shall strictly refrain from introducing into or otherwise maintaining in Bosnia and Herzegovina any armed forces or other personnel with military capability.” Arguably, the breach of this commitment, which undoubtedly will occur, will be a material breach of the entire Dayton Agreement that would give justification to the Republic of Bosnia and Herzegovina for pulling out of this Agreement. The same rationale would apply to the other letters by Milutinovic to that effect.
Letter by Izetbegovic to Christopher, November 21, 1995 on Confidence Building Measures 83. Notice that the Republic of Bosnia and Herzegovina no longer exists.
Milosevic Letter to Christopher of November 21, 1995 84. Notice that he does not undertake any obligation to develop confidence building measures between the Federal Republic of Yugoslavia and the Republic of Bosnia and Herzegovina. 85. Notice also that the establishment of formal diplomatic relations are not called for by this Agreement, which would require the exchange of Ambassadors between the Federal Republic of Yugoslavia and the Republic of Bosnia and Herzegovina. Indeed, this Agreement does not even call for the exchange of Ambassadors between the Federal Republic of Yugoslavia and “Bosnia and Herzegovina.” So in other words, Milosevic has not even recognized “Bosnia and Herzegovina,” let alone the Republic of Bosnia and Herzegovina. Indeed, there is no good reason for him to do so since the Republic of Bosnia and Herzegovina will go out of legal existence and Bosnia and Herzegovina will no longer function as a unified State. So why should he recognize them? He has gotten what he wanted, including half of Bosnia.
Security Council Resolution 1021 (1995) 86. Notice that in the second preambular clause there is no longer any reference to preserving the territorial integrity and political independence of the Republic of Bosnia and Herzegovina. 87. Notice also that in the third preambular clause it refers directly to “the Federal Republic of Yugoslavia” instead of to “the Federal Republic of Yugoslavia (Serbia and Montenegro).” 88. The phraseology of these two preambular paragraphs are significant victories for the rump Yugoslavia. In other words, the Republic of Bosnia and Herzegovina disappears, and the Federal Republic of Yugoslavia becomes the successor-in-law to the former Yugoslavia. Notice that under paragraph 1(b) the embargo on the delivery of heavy weapons, ammunition therefor, mines, military aircraft and helicopters “shall continue to be prohibited until the arms control agreement referred to in Annex 1b has taken effect…” In other words, the delivery of heavy weapons to the Bosnian government will still be prohibited indefinitely. So the real thrust of the arms embargo against the Bosnian government will continue into force. So the Bosnian Army still cannot obtain the heavy weapons it needs to defend its People and their Land. 90. Subparagraph © is so loaded with conditions that I doubt very seriously that the heavy arms embargo against the Bosnian government will ever terminate. It is completely meaningless. So under this resolution, the arms embargo on heavy weapons against the Bosnian government will stay in effect indefinitely. There is no commitment to a date certain that that arms embargo against heavy weapons will ever terminate.
Security Council Resolution 1022 (1995) 92. Notice that in the second preambular paragraph, the traditional reference to preserving the territorial integrity and political independence of the Republic of Bosnia and Herzegovina has disappeared.
93. Notice that in the fourth preambular paragraph, there is no longer a reference to “the Federal Republic of Yugoslavia (Serbia and Montenegro),” but rather simply to “the Federal Republic of Yugoslavia.” In other words, the Federal Republic of Yugoslavia is being treated as if it were the successor-in-law to the former Yugoslavia despite the General Assembly resolution and action to the contrary.
94. Once again, these language changes are significant victories for Milosevic. In other words, Milosevic got his way at the Security Council as well as at Dayton.
95. Under paragraph 1, therefore, the economic sanctions against the rump Yugoslavia “are suspended indefinitely with immediate effect…” Thus, whereas the arms embargo against the Bosnian government with respect to heavy weapons continues into effect indefinitely, the rump Yugoslavia gets economic sanctions against it suspended immediately on an indefinite basis, though subject to provisions “of paragraphs 2 to 5 below.” So in other words, Milosevic gets everything he wants and the Bosnians get nothing but a promise in the future. This is a real piece of dirty work by the Security Council.
96. The provisions keeping sanctions on the Bosnian Serbs mean nothing since the whole source of leverage was over Milosevic and Serbia.
97. Paragraph 5 of the resolution basically frees up the frozen Serb assets held around the world for Milosevic to go after.
98. The above comments speak for themselves and require no further elaboration from me. It is for you to decide where to go from here, whether to accept the Dayton Agreement or reject it. In the event you decide to reject the Dayton Agreement, then I am fully prepared to return to the World Court immediately for the purpose of obtaining an official order against this carve-up of the Republic of Bosnia and Herzegovina and for the purpose of breaking the heavy weapons arms embargo against the Bosnian Armija that will still continue in effect for quite some time. I cannot decide this matter for you. It is your future that is at stake. It is your State. It is your Destiny. It will be your Children and Grandchildren who will have to live with this decision.
May God always be with you. Your friend, Francis A. Boyle Professor of International Law