The Bosnian Case

To the Editors:

Dr. Kasim Trnka, the author of the following, is the former chief justice of the Constitutional Court of Bosnia. During the Vance-Owen talks and the recent talks in Geneva he served as a constitutional expert to the Bosnian delegation. The text published here is from a longer essay that will appear in a forthcoming book, Why Bosnia? Writings on the Balkan War.¹ The article has already circulated in Europe as a major statement of the Bosnian case.

In early August the Bosnians were given an ultimatum by David Owen to accept a partition which the Financial Times notes will leave the “Bosnian republic virtually landlocked and geographically disjointed … sandwiched between the new Greater Serbia and Greater Croatia.” The Financial Times noted that under the partition plan Bosnia will have a very “slim chance” of preserving its national identity. Perhaps, this is the end of the story. It may be appropriate to let an articulate Bosnian voice be heard before the coffin is finally closed on their country….

—Lawrence Lifschultz, editor,
The Pamphleteer’s Press

The international community had a moral, political, and legal obligation to stop the war in Bosnia and to prevent its merciless consequences. A clear legal basis for action was provided by the articles of the Helsinki conference and the Paris Charter, which take as their starting point the position that the defense of human rights is not just a question of national sovereignty but also the prerogative and responsibility of the wider international community. On the question of Bosnia, the European Community and the United Nations have demonstrated their incompetence at implementing principles they spent decades developing and drafting into charters.

The EC and the UN initiated two conferences on the war in Bosnia. The first, the London Conference of August 1992, recognized the territorial integrity of Bosnia-Herzegovina and identified the aggressor by imposing sanctions against Serbia. Although the London conference and a series of Security Council resolutions defined in principle the acceptable tenets for a resolution of the crisis, no effective mechanism of implementation was developed as a means of either halting hostilities or actually resolving the crisis.

Instead, Bosnia became an experiment in the structuring of international mechanisms for a new era. By overplaying its “fear” of Bosnia becoming a dangerous precedent for international engagement and the use of force in all future crisis points in the world, the international community ultimately tied itself in knots and failed to act effectively on the most essential principles of the UN charter and the Helsinki conference.

The London conference of August 1992 was followed in September 1992 by the so-called Geneva conference, convened under the joint chairmanship of David Owen, representing the EC as its new appointee, and Cyrus Vance, representing the UN secretary-general. The mandate of the Geneva conference was very clear: its sole task was to find mechanisms for the implementation of the London principles. Unfortunately, the Geneva conference deviated from its mandate and in so doing significantly degraded the entire peace process.

The formulations advanced at Geneva by Vance and Owen introduced two fundamentally flawed assumptions. These are responsible for all the subsequent weaknesses of the peace negotiations sponsored by the EC and the UN. For all practical purposes the Geneva conference abandoned the starting position of the London conference. In London, it was established without ambiguity that Bosnia was a sovereign state which had the legal right to defend itself against the aggression of another state. In Geneva, Vance and Owen altered the formulation and thus abandoned their mandate. Instead, they imposed the formulation of “three warring factions” upon the negotiations. They brought delegations into the negotiation process which they as mediators chose to identify as representatives of the three largest nationalities in Bosnia-Herzegovina.

The implications of this change were to prove tragic. The new formulation ignored the fact of aggression which the London principles had recognized. By ignoring the element of aggression the EC and UN mediators gave preeminence to the view that the war was essentially a civil, interethnic, and religious war. Although the Bosnian government reflected a multi-ethnic, cosmopolitan and pluralistic constituency, it was now designated a “faction.” This formulation placed the legitimate and legally elected organs of state power on a par with illegitimate self-proclaimed structures which were engaged in acts of aggression backed by external forces.

Thus the Geneva conference accepted as legitimate representatives of the three nationalities the leaders of three particular national political parties. None of these individuals had ever been given any mandate in any election to negotiate away the integrity of the country as an integral state. While they represented parties which had been elected to the parliament of the country, they could not even pretend to represent the entire community to which they belonged; there existed several other parties representing other political tendencies and drawing support from varied national and multinational constituencies. In addition, in the last elections more than one fourth of the electorate did not support any of the three political parties which Vance and Owen elevated to the status of “warring factions.”

The Geneva conference, which ultimately moved to New York in February 1993, advanced a second unacceptable premise. It insisted that the negotiations must first reach a compromise political solution in order to bring about an end to hostilities. This provided an enormous advantage to the aggressors, who were militarily twenty times stronger than the defenders. The aggressors simply kept the negotiations going while they proceeded with their attacks, their violence, their “ethnic cleansing,” and their genocidal acts. They used their daily military advances as a means of exercising pressure on the negotiating position of those who were defending themselves. Instead of demanding a cessation of hostilities as a first principle and a precondition for negotiations, the Geneva format actually prolonged hostilities and immeasurably increased the suffering of the civilian population.

At this stage the international community could have taken firm action to stop the war. It could have advanced a plausible military option to deter the ongoing aggression. Instead, the international community relentlessly applied pressure on the representatives of the legal government of Bosnia to make even further concessions. Not only did the world community not fulfill its obligation to defend a member state of the United Nations, it compounded its failure to act by denying Bosnia-Herzegovina the legitimate right of self-defense by maintaining an arms embargo. This was not only a morally and politically reprehensible position, it was also contrary to international law, which guarantees a nation the right to self-defense.

Several international forums, including the General Assembly of the United Nations, have declared that aggression has occurred against the Republic of Bosnia and Herzegovina and that genocidal acts have been committed. Therefore the legal requirements for the initiation of international action against both aggression and genocide have been fulfilled. Furthermore, a state under attack has, in accordance with Article 51 of the UN Charter, the right to self-defense. The exercise of this right requires arms. Yet the international community has frustrated this right by asserting, without legal grounds, that the embargo on arms imports imposed on Yugoslavia in September 1991, at the request of Serbia, extended to Bosnia. The effect has been to contradict Article 51 by denying a victim of aggression the means of self-defense. Besides being politically and morally indefensible, such a position is perilously close to collusion with aggression. It is self-evident that to apply an arms embargo to the Republic of Bosnia-Herzegovina which was imposed on another state is legally untenable.

The Vance-Owen talks at Geneva gave the highest priority to forms of political compromise which fused pragmatism with expediency. The result was a proposal for a settlement of the conflict which was at variance with the principles of international law and the traditions of a juridical system based on democratic principles. The Vance-Owen plan was conceptually flawed and inconsistent. It was a proposal favoring an existing balance of forces which has been established by aggressive acts. David Owen’s open acceptance on June 17 of the Milosevic-Tudjman plan to partition Bosnia and its endorsement by the UN and the European Community was the last act in the degradation of the Bosnian peace negotiations as conducted by the representatives of the international community.

While David Owen has not flinched from accepting Milosevic’s penultimate scheme to destroy Bosnia, the retired Mr. Vance has … demurred from publicly endorsing partition. Three days after David Owen endorsed Milosevic’s plan, Cyrus Vance discreetly distanced himself when he told The New York Times, “Right from the beginning, we always said there can be no partition. It’s wrong. It’s the equivalent of endorsing ethnic cleansing.”²

Whatever minimal territory David Owen and Thorvald Stoltenberg, his new counterpart, ask the Serbs to give up, the plan dictated by the aggressors still makes significant territorial concessions to the sides which, armed and backed by Serbia and Croatia, enjoy military superiority. This is not a proposal which democratic states that oppose the seizure of territory by force can accept without abandoning fundamental principles. Yet the abandonment of such principles was evident in every aspect of the Vance-Owen plan, as it is now in the final negotiations coordinated by Owen and Stoltenberg to partition Bosnia.

There remains in the end, as in the beginning, only one legitimate and practical solution—lifting the arms embargo imposed upon the legal government of the Republic of Bosnia-Herzegovina. By removing the embargo the world community merely recognizes the legal principle that a country under attack has the right to defend itself. There never was a third option.

In the case of Bosnia, the international community has failed tragically to demonstrate resolve in defense of the most fundamental principles of democracy and international law. The incompetence of its diplomacy and its hesitancy to act effectively on behalf of established principles has only increased and prolonged the suffering of Bosnia’s people. In the long term, it has also created the possibility of new armed conflicts throughout the world and the further destabilization of the international political and legal order.