By Aurora Weiss
VIENNA | 28 December 2023 (IDN) — To be convinced of the legal position of the High Representative Christian Schmidt, we asked for a review of the resolution and vote in the UN Security Council. We spoke with President Milorad Dodik, the famous lawyer Anto Nobilo, and many others to find out why the “German representative of peace” brought escalation and new conflict to the Western Balkans.
The Dayton Peace Agreement, signed in Paris on 14 December 1995, brought an end to the long and brutal war in Bosnia and Herzegovina. Today, we examine the power and legitimacy of the High Representative Christian Schmidt. The German politician who currently wants to write the rule of law and intervene in the Constitution of Bosnia and Herzegovina decided to bring the President of the BiH entity Republika Srpska (RS) Milorad Dodik and the acting director of the Official Gazette of the RS Miloš Lukić to the criminal court.
Being prosecuted because they do not respect the decisions of OHR
Dodik and Lukić are accused of the criminal offense of failure to implement the decisions of the High Representative of the international community in Bosnia and Herzegovina (OHR), for which they can face a sentence of six months to five years in prison if convicted. A guilty verdict also means an automatic ban on performing their duties.
The amendments to the Criminal Code of Bosnia and Herzegovina, according to which Dodik and Lukić will be tried, were imposed by the current High Representative Christian Schmidt on 1 July 2023., at the same time when he repealed the laws by which the National Assembly of the RS tried to block the implementation of his decisions, as well as the verdict of the Constitutional Court of Bosnia and Herzegovina. Although Schmidt annulled the disputed laws, Dodik signed the decree on their entry into force, and Lukić published them in the Official Gazette of the RS, so both of them violated the law.
The defendants said they didn’t feel guilty at the preliminary hearing on 16 October at the Court of Bosnia and Herzegovina. Their defense is based on the claim that Schmidt is not a legitimately elected high representative from the UN Security Council, so according to their interpretation, he could not impose changes to the Criminal Code of Bosnia and Herzegovina. President of Republika Srpska, Dodik invited respected Croatian lawyer Anto Nobilo to his defense team as a legal advisor. Nobilo decided to examine the powers of the High Representative in Bosnia and Herzegovina and to determine whether Schmidt was appointed High Representative at all. If not, the whole process falls into the water.
Croatian President Milanovic called BiH a “clumsy, sloppy, incompetently managed colony”
The German politician doesn’t enjoy the sympathy of the one more entity of Bosnia and Herzegovina and was practically named persona non grata. The President of Croatia, Zoran Milanović, stated in August 2023, after the lawsuit filed against Dodik and Lukic, that Schmidt “in order to protect his ass and his reputation changed the criminal law according to which what Dodik did is a criminal offense.”
“That’s called colonial administration and it’s destroying that country,” he added.
“Christian Schmidt is installed as the colonial administrator in Bosnia and Herzegovina”, told Zoran Milanović in front of the journalist adding that ‘’BiH is clumsily, sloppily, incompetently managed colony where a handful of third-rate bureaucrats make a living”.
Milanović described Schmidt with following words: “he is a retired German politician who left behind an insignificant trace, that he was installed by someone as a colonial administrator in Bosnia and Herzegovina, he does not have a mandate from the UN Security Council and that some embassies in that country are behind his actions country citing American”. He believes that OHR led to the escalation of the situation in BiH and invited all citizens of BiH – Croats, Serbs, Bosniaks – to talk without colonial administrators”.
Minister of Security: Christian Schmidt represents Germany in BiH—not the United Nations
Finaly, on 12 October 2023 Schmidt’s status was publicly confirmed by BiH Minister of Security Nenad Nešić, who stated that “checks have shown that Christian Schmidt is illegitimate and that he actually represents Germany in Bosnia and Herzegovina, not the United Nations”.
Presenting information from security agencies about Schmidt’s stay in BiH, Nešić stated that he only has a diplomatic note from Germany, but not from the UN, as the only competent institution for confirming the appointment of a High Representative in BiH (OHR).
“Citizens of Bosnia and Herzegovina want a country with the rule of law and respect for the Constitution and laws, that is, a modern European country, and that is not possible if Schmidt continues to falsely present himself as the so-called High representative in Bosnia and Herzegovina,” said Nešić.
Pressure from Austria and orchestrated attacks on RS president resemble Schmidt’s lobbying in Vienna
OHR’s salary of 24,000 euros per month, along with numerous other benefits, can certainly be the motive for the strong lobbying in the international community initiated by the retired Christian Schmidt to keep his position in Bosnia and Herzegovina.
—That’s why I’m here, in Vienna, to ask for political support—at the beginning of November Schmidt addressed the audience on the stage of Europa Forum Vienna.
His presentation was reduced to the fact that he talked against RS President Milorad Dodik because he “could not talk with him at the same table”. It was clear to a present experienced diplomats that Schmidt’s goals and the tools he forced had nothing to do with diplomacy. This is exactly what diplomacy is about, sitting at the same table and talking. You can’t use the wrong tools and wonder why something doesn’t work? There is no repression in diplomacy. That’s why foreign diplomats must stop abusing the rule of law and disregarding international norms and the Dayton Accords, including BiH’s democratic constitutional order.
What we can agree is the view of Croatian President Zoran Milanović, and the fact is that the table is on the territory of BiH and that RS President Dodik was born in SR BiH, and that the citizens of that same country elected Dodik democratically as their representative. Citizens of Bosnia and Herzegovina should not allow a foreigner with questionable interests to lead their country.
However, Schmidt’s cry in Vienna triggered an avalanche that arrived from Austria as support. Most of the activity came from the members of the Austrian People’s Party, with whom, it is assumed, he has nourished acquaintances since his mandate as Secretary Treasurer and member of the Presidency of the European People’s Party.
EU Minister Karoline Edtstadler, during her visit to Sarajevo in early December, said that Vienna strongly supports the institution of the High Representative for BiH and considers the attacks on him coming from Republika Srpska completely unacceptable. Austrian Minister of Defense Klaudia Tanner visited on 4 December her colleague Zukan Helez in BiH, who represents Bosniaks in BiH, but she did not use that opportunity to meet colleagues representing the other two entities.
Member of the National Council of Austria Helmut Brandstätter addressed parliamentary very short question to colleagues to the Federal Minister for European and International Affairs asking “How does Austria ‘stand’ about Milorad Dodik?”.
Even pro NATO “marginal personality” Gunther Fehlinger called for a terrorist attack on the government of Republika Srpska through his social networks: “In case of war, we must bomb Banjuluka and demolish the new government building within two hours after Milorad Dodik starts his war for secession.” The problematic announcement of the marginal Austrian, which by all means carries the qualification of a national threat, was reported publicly by media such as Danas. hr and Kurier in a very positive tone.
Legal adviser Anto Nobilo : Christian Schmidt is our key witness
We traveled to Zagreb to personally meet with Anto Nobilo, the legal advisor of the President of the RS Milorad Dodik, immediately before the first trial, which was postponed in the courtroom on 6 December in Sarajevo.
Nobilo, who was a participant in many important processes, from the trial of Andrija Artuković to the representation of General Tihomir Blaškić at the International Court in The Hague, said that he accepted to be a consultant in Milorad Dodik’s legal defense team because the case is a challenge for him from a legal perspective. He also pointed out that Christian Schmidt himself, who filed the legal complaint, will be called as a key witness in this process.
Like in this case, told Nobilo, the peace agreement is a source of law and many states were created and disappeared by the peace agreement. The peace agreement concluded in Dayton contains the text of the constitution of Bosnia and Herzegovina. The authority of the High Representative (HR) to enact laws does not derive from the peace agreement and from the legal constitution of Bosnia and Herzegovina, and especially not to evoke the laws that encroach on basic human rights, such as criminal law.
“I think that Christian Schmidt, and before him, HR Valentin Inzko, exceeded their authority. They invoke the Bonn powers, aware that the Dayton peace agreement does not allow them. The Bonn powers, as they call them, were defined at the political conference in Bonn. A political conference cannot become a source of law. It cannot expand the constitution of Bosnia and Herzegovina. It is not a new peace agreement,” explains Anto Nobilo, pointing out that in the peace agreement, we have exactly the parties that signed it and the parties that are guarantors and witnesses.
In case they wanted to expand their powers of theHigh Representative, the top Croatian legalist explains to us, they had to make an annex to that agreement. The same parties that signed it, Croatia, Serbia and BiH, the same witnesses from Japan,, Russia, the USA and Western European countries should have signed as witnesses. That didn’t happen. And the powers of the High Representative were expanded effectively by force, legally unfounded. It was done with the power of political factors- not legal means, stressed Nobilo, adding that so far, it has never been so dramatic.
“For a HR to make a decision to pass new laws on the same day, and after 7 days the President of Republic Srpska was accused, so it seems that this time it is really excessive. However, it is a good opportunity for us, when the criminal proceedings have already been initiated, to reconsider the role of the international community in Bosnia and Herzegovina, because if you have a temporary High Representative who has immeasurably large powers, including legislative powers, for one man to pass laws, which is inappropriate because they use them to persecute the democratically elected President of that country. If you have this situation 28 years after signing a Dayton peace agreement, something is wrong with that system!,” It is simply unacceptable, I dare to say: Irresponsible! The West cares that there is peace in BiH and no war, but they don’t care how that country will progress, stressed Nobilo.
This situation made him reconsider the role of the Office of High Representative (OHR) because something is wrong with it.
“If institutions could not be built in this way in 28 years – then a different approach is needed. You can’t do something 28 years without results, that nothing changes. It is irresponsible to attack directly a man who has democratic electoral legitimacy. Milorad Dodik was elected by the people living in Bosnia and Herzegovina. He is also the longest-serving politician in power for more than 20 years. The will of the people should be respected,” concluded Nobilo our interesting conversation.
President RS Milorad Dodik: The Bonn Conference is a “Bluff” that writes the future of BiH
In order to approach the topic authentically, along with countless legal texts and UN documentation, we decided to talk to Dodik personally. And you won’t believe he was everything we did not expect: he was friendly and kind – not impossible’ as Schmidt represented him.
In our conversation with President Milorad Dodik, he pointed out that The High Representative (HR) does not have the powers that Schmidt obtained for himself, and neither did those before who were appointed by the UN Security Council.
He concluded that Schmidt is a manifestation of all the hopelessness of international politics that has been trying, for the last 30 years, to impose a concept that does not and cannot pass here in Bosnia and Herzegovina.
“Christian Schmidt is an illegal High Representative (HR) because he does not have the approval of the UN Security Council (UN SC), and we have been pointing that out since the very beginning of his appearance in Bosnia and Herzegovina (BiH) as such.
“Even he – himself, before coming to Bosnia and Herzegovina, to the congratulations that have been sent him inside Germany, said in a statement there: “Let’s wait. We have to wait for the decision of the UN Security Council, then you can congratulate me.”
However, Dodik, told us immediately after a few months, he himself violated his statement and appeared here as an illegal who, under the influence of American power, was trying to impose himself in Bosnia and Herzegovina as an alleged High Representative (HR).
“Instead of bringing things to legitimacy and obtaining a UN Security Council decision on his appointment, Schmidt went into repression. He changed the law on election day, ie after the end of the election at 7 PM. On the very day of the elections in BiH, the Constitution intervened by law and certain laws intervened, which is Unimaginable. This does not exist in any country in the world,” stressed President RS Milorad Dodik during our phone conversation from Vienna to BiH.
The leader of the Serbs in Bosnia claims that retired German politician enjoys support only from the Americans and those who follow them. He stresses that what brings very sad emotion into the whole story is the fact that Germany allowed their foreign policy to be ruined in this way. From his perspective, this legal process shows how much there has been wrongdoing under the current leadership of the people who run Germany’s foreign policy.
“As far as Schmidt is concerned, he cannot produce any “deity” and his appearance doesn’t positively affect Bosnia and Herzegovina. Therefore, his imposition of laws is accepted only by Muslims in Bosnia and Herzegovina. And that as a mechanism to deal with others – the Serbs, specifically me and some others who don’t answer to him – told us Milorad Dodik.
He swears that the situation in BiH is a big bluff of the international community. When they introduced the Bonn powers, then-representative Carlos Wedstendorp, a Spaniard, said: “This has nothing to do with the law, this is beyond the law and Dayton Agreement, but we have to try to do something. This means that the Bonn powers have no real basis.”
“On the other hand, the woman who led the British delegation at the Bonn Conference said: This is a bluff, and we’ll see if it works. And that bluff has been working here for 30 years!,” the President of RS Dodik concluded our conversation.
Is Christian Schmidt legit HR in BiH representing UN? Documents from UN SC say: No!
To get to the truth and find out if Schmidt is falsely representing himself and what his legal powers are, we continued to dig through the documentation in UN New York.
We had insight to the letter from Austrian diplomat Valentin Inzko, dated 24 June 2021 addressed to the President of the Security Council that the Peace Implementation Council Steering Board has decided to appoint former Federal Minister Christian Schmidt of the Federal Republic of Germany as the next High Representative for Bosnia and Herzegovina. Permanent Representative of Germany to the United Nations Christoph Heusgen submitted that letter of recommendation to the UN SC. How did the PIC make the decision, who and when did they meet, and which other candidates competed for the position, and the explanation for the election of Schmidt is non-transparent and undemocratic, dare to say criminally- corrupted.
But then, the Draft resolution on the designation of Christian Schmidt as High Representative for the Implementation of the Peace Agreement on Bosnia and Herzegovina in UN New York on 22 July 2021 – failed. The draft resolution was not adopted having failed to obtain the required number of votes (S/PV.8823).
Letter dated 31 October 2023 from the Permanent Representative of the Russian Federation to the United Nations Nebenzia Vassily Alekseevich addressed to the President of the Security Council, delivered the thirtieth report of the Republic Srpska on recent political developments in Bosnia and Herzegovina call out Mr. Christian Schmidt for a dictatorship :
“The Dayton Accords have been a great success, and there is no chance of a return to war in BiH. Nevertheless, BiH’s internal political situation today is unusually turbulent. BiH is a country with an extremely complicated and painful history. It is perfectly obvious that any international official in BiH hoping to improve the situation needs to have a deep understanding of the region, an abundance of diplomatic skills, cautious and patient prudence, and great cultural sensitivity. It is equally obvious that Mr. Christian Schmidt, a dictator thrust into BiH by a handful of powerful countries acting without a shred of legality, has not a single one of these qualities. Indeed, he has shown himself to be their very antithesis. Worse, in a country in which many people can never forget the Nazi-inspired genocide against Serbs, Jews and Roma committed in the last century, this figure who claims unrestricted power to rule BiH by decree openly affiliates, unapologetically, with a group that honors the Nazi-era Wehrmacht.
Mr. Schmidt’s constant alarmist statements tendentiously blame the elected leaders from the RS for BiH’s political instability and falsely accuse them of undermining the rule of law and BiH’s constitutional order. Mr. Schmidt lacks the comprehension to understand that it is his reckless, illegal diktats that have been the main cause of the recent turmoil in BiH and that a foreigner claiming autocratic powers over the people of BiH is, to say the least, an appalling abuse of the rule of law and a severe violation of BiH’s constitutional order.
Certain members of the Security Council have decided to deny any role for the United Nations in appointing a High Representative (HR); recognizing that achieving a consensus on such an appointment would take hard diplomatic work, they instead took the easier path of usurping the authority of the Council and appointed a man of their own choosing, pretending that the appointment was legal. It is widely understood that it was not, but legality aside, to leave such a reckless and ill-qualified man as Mr. Schmidt in such a difficult and sensitive position, at such a turbulent time for the region, is flagrant diplomatic malpractice.”
*The role of the OHR as inscribed in the Dayton Peace Agreement (DPA) can by no means be understood as exceeding the function of a ‘mediator’ or a ‘facilitator’. No executive or legislative prerogatives can be read into Annex 10 without revising it, it is well explained in the article published in the Goettingen Journal of International Law under the title The ‘Bonn Powers’ of the High Representative in Bosnia Herzegovina: Tracing a Legal Figment.
It discusses exemplary OHR decisions that reach far into the legislative, the executive, and the judicial domain of BiH and analyses possible legal sources for the broad powers claimed by the OHR. It explores the limits of the OHR’s original mandate in light of the Vienna Convention on the Law of Treaties, and it looks at the implied powers doctrine as a basis for the OHR’s claims. It also considers a conferral of the ‘Bonn Powers’ on behalf of the United Nations Security Council. The article concludes that the ‘Bonn Powers’ do not qualify as a legal power and that their existence is merely a powerful but delusive legal fiction.
Nonetheless, the governing principle of the OHR’s engagement in Bosnia and Herzegovina is the concept of domestic responsibility. This concept calls on the officials and citizens of Bosnia and Herzegovina to take responsibility for the peace process and the problems that their country faces, it is stated on the official website of the Office of the High Representative in the involvement in Bosnia and Herzegovina. [IDN-InDepthNews]
Photo: Signing the Dayton Agreement. Seated (left to right): President of Serbia Slobodan Milosevic, President of Croatia Franjo Tudjman, President of Bosnia Herzegovina Alija Izetbegovic; standing (left to right): Spanish Prime Minister Felipe Gonzalez, US President Bill Clinton, French President Jacques Chirac, German Chancellor Helmut Kohl, UK Prime Minister John Major and Russian Prime Minister Viktor Chernomyrdin. Source: NATO
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