TO: The Parliament of the Republic of Bosnia and Herzegovina
FROM: Professor Francis A. Boyle
SUBJECT: Agreement on Basic Principles in Geneva of 8 September 1995
DATE: September 11, 1995
I have been asked to comment on the Agreement on Basic Principles in Geneva of September 8, 1995. Succinctly put, the implementation of this Agreement will carve-up the Republic of Bosnia and Herzegovina into two de facto independent states and definitively prevent the return of about one million people to their homes that will remain under the occupation of Serbian aggressor forces for the indefinite future. Eventually, after a period of years, the lands allocated to the Bosnian Serbs by this Agreement will be incorporated by the rump Yugoslavia in order to produce a Greater Serbia. Under those circumstances, I do not see how the so-called Federation of Bosnia and Herzegovina can continue to survive as an independent state. It will eventually be incorporated by the Republic of Croatia in order to produce a Greater Croatia. For these reasons, I would advise you all to reject the implementation of this Agreement.
Point 1 of the Agreement is defective. The rump Yugoslavia does not grant diplomatic recognition to the Republic of Bosnia and Herzegeovina or to the Government of the Republic of Bosnia and Herzegovina. This must be done by means of exchanging ambassadors between Bosnia and the rump Yugoslavia. But the rump Yugoslavia will never do this. Rather, by means of this Agreement, the rump Yugoslavia will be able to implement a de facto annexation of Bosnian Serb lands. This conclusion becomes quite clear from analyzing the rest of the so-called Agreement.
By means of Point 2, the Republic of Bosnia and Herzegovina will be carved up into two de facto independent states: the Federation of Bosnia and Herzegovina (hereinafter called the Federation) and the Republika Sprska (RS). The United States government has been preparing the way for this bifurcation, partition, division, and carve-up of the Republic of Bosnia and Herzegovina since the conclusion of the so-called Washington Agreements of 18 March 1994. In this regard, I would refer you to my Memorandum to the Parliament of the Republic of Bosnia and Herzegovina on the Washington Agreements that was submitted to you on 24 March 1994.
As you can see from my earlier Memorandum, the Federation has been set up to function and operate as a de facto independent state that will ultimately become a de jure independent state. Likewise, the RS Constitution has proclaimed itself to be a de jure independent state. Hence, you now have two self-proclaimed independent mini-states operating within the Republic of Bosnia and Herzegovina. This can only lead to the partition and division of the overall RBH State.
Moreover, I do not understand what was obtained by the Government of the Republic of Bosnia and Herzegovina extending formal diplomatic recognition to the RS. This completely legitimizes the Bosnia Serb conquests in the eyes of the international community. All you got in return was a paper commitment that the State might be divided in accordance with the 51:49 "parameter." In other words, the Serbs immediately obtained recognition of the legitimacy of their claim to constitute a de facto independent state in return for a paper promise.
Point 2(1) refers to the 51:49 ratio as only a "parameter." In other words, this so-called parameter is not a "ratio" or a "percentage." Thus, it can be changed and reduced to the disadvantage of the Federation. This is made clear by the next sentence of Point 2(1) to the effect that the "parameter" is "open for adjustment by mutual agreement." In other words, the Bosnian government can now be pressured to make even more concessions beyond the 51:49 "parameter" to the advantage of the Serbs.
And of course nothing is said in here about protecting Sarajevo as your sovereign capital. Holbrook has publicly admitted that he intends to carve-up Sarajevo. Indeed, the Washington Agreements were drafted on that assumption. In other words, Sarajevo will become a city like Berlin was: divided by a wall.
By means of Point 2(2), the Government of the Republic of Bosnia and Herzegovina has formally recognized the validity and the legitimacy of the Constitution of the Republika Sprska (RS) without getting anything in return. Remember that the RS Constitution proclaimed itself to constitute an independent state. This has now been formally recognized by the Government of the Republic of Bosnia and Herzegovina in return for a paper promise. The language in the parentheses "(amended to accommodate these basic principles)" is so vague by the use of the word "accommodate" that it can permit the Serbs to maintain that the Bosnian government has now recognized them as a de facto independent state.
By means of Point 2(3), the Republika Sprska will have the right to "establish parallel special relationships" with the rump Yugoslavia. The critical word here is "parallel." The question is: Parallel to what? And the answer is: Parallel to the Confederation Agreement between the Federation and the Republic of Croatia that was part of the Washington Agreements. In other words, by means of this Agreement the Bosnian Serbs have been given the right to enter into a Confederation Agreement with the rump Yugoslavia that is similar in content to the Confederation Agreement concluded between the Federation and the Republic of Croatia. As I explained in my Memorandum to the Parliament of 24 March 1994, the establishment of such a confederation between RS and the rump Yugoslavia will be tantamount to the de facto annexation of the Bosnian Serb lands by the rump Yugoslavia. In other words, there will be created a Greater Serbia. It will not be the "Greatest Serbia" since it would not include the Krajina region of Croatia. But it will still be a Greater Serbia.
Eventually what will happen is that after the Bosnia Serbs establish a confederation with the rump Yugoslavia, several years will go by and then they will decide "voluntarily" to join themselves with the rump Yugoslavia pursuant to what they will say is their so-called right of self-determination under international law and their Constitution. Nothing in this Agreement can stop that from happening.
Point 2(4) makes it clear that the Federation and the RS are being established as de facto independent states. Unlike previous so-called peace plans like Vance-Owen and Owen-Stoltenberg, there is nothing in here to set up a governmental structure above the two entities or to legally coordinate their functions. The rest of Point 2(4) continues to treat the two entities as if they were de facto independent states.
Point 2(4)(b) refers to the obligation to "...enable displaced persons to repossess their homes or receive just compensation." The critical word here is "or." In other words, there is no obligation by the Bosnian Serbs to allow Bosnian refugees to return to their homes. Rather, this provision expressly gives the Serbs the right to deny Bosnian refugees to return to their homes provided the refugees receive "just compensation." But there is no mechanism established here to pay for such "just compensation."
This is precisely the type of promise that the international community made to the Palestinian People after the partition of the Mandate for Palestine by the United Nations in 1947. A General Assembly resolution was adopted that provided the Palestinian refugees have a right to return to their homes or just compensation. And Israel was required to accept the terms of this resolution as a condition for its admission to the United Nations Organization itself. Nevertheless, almost fifty years later, two and a half million Palestinian refugees still sit around and rot in refugee camps scattered throughout the Middle East with no prospect of going home and no type of compensation at all. The exact same thing is going to happen to the Bosnian refugees. Indeed there is a striking similarity between the carve-up of Palestine by the United Nations in 1947 and the carve-up of the Republic of Bosnia and Herzegovina by the United Nations in 1995. In the event you go forward with this Agreement, then the Bosnians will become the Palestinians of the Balkans.
Point 3(1) simply reaffirms the above analysis. Once again, it gives the Bosnian Serbs the right to deny Bosnian refugees and displaced persons to return to their homes in the name of providing them with "just compensation" that is not provided for or funded in this Agreement. So all the Serbs have to do is say that Bosnia refugees will someday be given "just compensation" for their homes. In other words, by means of this Agreement, approximately one million Bosnian refugees will never be able to return to their homes.
The rest of Point 3 of the Agreement simply provides for the terms of the divorce between the Federation and the RS. There is no attempt made here to set up a governmental structure that will link the two entities. Rather, according to this Agreement, these two entities are currently being treated as if they are de facto independent states under international law.
For all of the above reasons, I can only recommend that the Bosnian Parliament reject this so-called Agreement. Any negotiated peace plan for Bosnia and Herzegovina must be based upon preserving the territorial integrity and political independence of the Republic of Bosnia and Herzegovina within its internationally recognized borders as well as its Membership in the United Nations Organization. As part of any peace plan, all Bosnian displaced persons and refugees must have an absolute, guaranteed and effective right to return to their homes. As you may know, it was my job to accomplish these objectives as the Legal Adviser to the Bosnian Presidency at the so-called Owen-Stoltenberg negotiations in Geneva during the Summer of 1993. I am prepared once again to offer my services to accomplish those objectives. Toward that end, I would ask the Parliament to get me the instructions from the President and the Presidency of the Republic of Bosnia and Herzegovina to institute legal proceedings against the United Kingdom or Russia before the International Court of Justice in order to stop the ethnic carve-up of Bosnia and break the illegal arms embargo. By the grace of God, I have already won two World Court Orders that were overwhelmingly in favor of Bosnia. For the same reason, I can win a third.
May God be with you and the Bosnian People.
Yours very truly,
Francis A. Boyle Professor of International Law