For the first time since the conclusion of the war in Bosnia and Herzegovina (BiH) 30 years ago, the United Nations safety Council (UNSC) has not welcomed the nomination of the advanced typical (HR). This happened as a consequence of the erstwhile German politician Christian Schmidt’s appointment in 2021. The position of HR was established under the 1995 Dayton Peace Agreement (DPA). Despite disagreement on his position, Schmidt utilized the alleged “Bonn Powers” to enact a law criminalizing any disregard for his decisions. 1 of his moves even tried to remove from office Milorad Dodik, the elected president of Republika Srpska (RS). This has prompted the RS National Assembly to challenge state-level institutions and enact entity-level laws that contravene the state constitution.
However, the central issue remains the HR. No another global authoritative possesses specified sweeping legislative and executive authority without a clear legal mandate from either a binding global agreement or the UNSC. This unaccountable power structure has created unprecedent tensions, including through Schmidt’s fresh impositions that affect relations among the 3 main ethno-national groups in BiH — Bosniaks, Croats, and Serbs.
Strange alchemy: transforming Annex 10 into the “Bonn Powers”
The HR was established by “Annex 10” of the DPA, signed in Paris on December 14th 1995. Article II of this paper best explains the reasons for the establishment of the HR. It defines its responsibilities, which are to “monitor” the implementation of the peace agreement; “maintain” contact with the Parties; “promote” compliance; “coordinate” civilian efforts; “facilitate” the resolution of issues; “participate” in donor conferences; “report” on progress; and “provide” guidance. Article V besides says that the “High typical is the final authority in theatre regarding explanation of this Agreement on the civilian implementation of the peace settlement”.
Less than a week before the signing of the DPA, a Peace Implementation Conference was convened in London between December 8th and 9th 1995. The purpose of the conference was “to mobilise the global community behind a fresh start for the people of Bosnia and Herzegovina”. It was at this conference that the Peace Implementation Council (PIC) was formed, composed of 55 states and agencies, along with its PIC Steering Board (PIC SB) with 12 members. However, the PIC is not mentioned in the DPA.
International oversight mechanisms were deemed essential to safeguard the implementation of the civilian aspects of the peace agreement in the immediate post-conflict period. 2 years later, at the yearly PIC conference, held on December 9th and 10th 1997 in Bonn, the PIC welcomed “the advanced Representative’s intention to usage his final authority” to resolve difficulties “by making binding decisions” concerning meetings; interim measures erstwhile parties disagree; and actions against officials. These mechanisms are better known as the “Bonn Powers”.
Yet, it is at the very least amazing that the PIC Bonn Conclusions “welcome” the HR’s intention to “make binding decisions”. In effect, the PIC unilaterally interprets the HR’s “final authority” with respect to the explanation of the DPA as encompassing the power to issue binding decisions. The PIC reconvened on December 15th and 16th 1998 in Madrid, where it acknowledged that the Bonn Powers did not originate from the DPA, but were alternatively conferred subsequently at the Bonn meeting. In its Madrid Declaration, the PIC expressly stated that “[w]e full endorse the broad and crucial powers given to the advanced typical at the Bonn Peace Implementation Council”, thereby affirming the extra-DPA origin of these authorities.
Perhaps this explains why Carlos Westendorp, the first HR who utilized the Bonn Powers, claims that they “are not very legal”. Notably, the PIC London Conclusions designated the HR as the president of the PIC SB. As a result, the PIC SB’s president Westendorp effectively conferred nearly unlimited authority upon the HR. This arrangement constitutes an unparalleled conflict of interest. Adis Merdžanović defines this strategy “democracy by decree”. The Council of Europe (CoE) clearly states that “the justification for these powers in the future merits not only political but besides legal consideration.” Gro Nystuen, legal advisor to the EU peculiar Envoy to the erstwhile Yugoslavia and author of the DPA’s annexes related to human rights, says that “the Bonn Powers did not have a legal basis in Dayton.” Charles Crawford, the British ambassador to BiH between 1996 and 1998, writes that “the Bonn Powers had no real legal basis at all. They amounted to an global political power-play bluff… Sooner or later a direct legal challenge to these ‘powers’ was going to be mounted somewhere.”
The UN safety Council and the “Bonn Powers”
These claims illustrate that the PIC itself lacked the legal authority to confer specified extended powers upon the HR. The PIC could not delegate powers that are not specified in Annex 10, nor did the PIC have specified powers.
This brings the issue into the realm of treaty explanation and the principles enshrined in the Vienna Convention on the Law of Treaties (VCLT). VCLT Article 31(1) provides that a treaty shall be interpreted “in good religion in accordance with the average meaning to be given to the terms of the treaty in their context and in the light of its object and purpose”. This VCLT provision is irreconcilable with the Bonn Powers. The notion of “binding decisions” must be clearly distinguished from the HR’s position as the “final authority in theatre” for interpreting the civilian implementation of the Peace Agreement. As Tim Banning asserts, “the final authority to interpret is indeed a power to interpret,” alternatively than a power to render “binding decisions”. This is especially actual since the implementation of the DPA is reserved to the Parties themselves.
Neither did the UNSC trust the PIC with the alleged Bonn Powers, nor are the PIC or the HR subsidiary organs of the UNSC. The establishment of the PIC was politically “welcomed” in a preambular paragraph of UNSC Resolution 1031 (1995). However, the PIC has never been granted a mandate by the UNSC under Chapter VII of the UN Charter. This is actual in UNSCR 1031 and in subsequent yearly resolutions adopted pursuant to it.
Follow-up UNSC resolutions adopted between 1999 and 2014 — while “reaffirming” the PIC Bonn Conclusions in their 4th operative paragraph — do so in a political and not a legal sense. They express political support for the function of the HR but fall short of constituting a legal delegation of authority. Contrary to mandates clearly placed under the UNSC (e.g., UNMIK), UNSCR 1031 and subsequent resolutions have not authorized either the PIC or the HR to make binding decisions.
Banning notes that “the UNSC does not decide that the OHR [Office of the advanced Representative] has the power to make binding decisions, it only reaffirms what the PIC concluded.” This does not legalize the Bonn Powers at all, creating a situation of “legal figment”. Daniel H. Joyner discusses the UNSC’s usage of wording in operative paragraphs to indicate its intention to make binding obligations. Joyner argues that in UNSC resolutions “[t]he word ‘affirm’ means to declare something as a fact or to assert or support a principle. It is simply a message announcing or supporting a fact or principle, but it is not a word that conveys the notion of the origination of a fresh legal work under the authority of the safety Council, in the same manner as the words ‘decide’ or ‘demand’ do.” He besides notes that the word “‘reaffirms’ should be understood to have the same nonmandatory meaning as the words ‘affirm’ and ‘calls upon’.”
This supports the view that the specified “reaffirmation” of the PIC Bonn Conclusions in UNSC resolutions does not constitute legal authorization for the PIC to interpret the mandate of the HR in a manner contrary to Annex 10.
In follow-up UNSC resolutions from 2015 to 2020, references to the HR, the Bonn Powers and the PIC were notably absent from the operative paragraphs. In these resolutions, the UNSC simply “reaffirms the advanced Representative’s final authority in theatre in the explanation of the civilian implementation of the Agreement”. This is placed in a non-operative preambular paragraph before invoking Chapter VII of the UN Charter. Again, the mention to Annex 10’s “final authority” without a clear decision or authorization by the UNSC regarding the Bonn Powers has never meant that the HR possesses the authority to issue “binding decisions”.
Since 2021, neither the HR nor the PIC have been mentioned at all in UNSC resolutions — a likely consequence of the unresolved controversy surrounding the legality of the HR Christian Schmidt’s appointment.
The UNSC’s inconsistent approach over the past 3 decades has generated crucial legal ambiguity. As Michael Wood has observed, UNSC resolutions “are frequently part of a series, and can only be understood as such”. This reflection is peculiarly applicable in the context of UNSCR 1031 and its follow-up resolutions. The discrepancies among these resolutions over the past 30 years have perpetuated legal uncertainty concerning the Bonn Powers and the PIC. Had the UNSC intended to formally legalize them, it would have done so explicitly — by clearly authorizing their mandates in the operative paragraphs of all resolutions following UNSCR 1031. The absence of specified references underscores the continuing deficiency of formal legal designation by the Council.
The “Bonn Powers” and home courts
Domestic actors tried to challenge the advanced Representative’s binding decisions before home courts. The Constitutional Court of BiH’s Decision U 9/00, which upheld the HR’s imposition of the Law on the State Border Service on January 13th 2000, relies on a flawed analogy to pre-UNSC interventions. The Court compared the HR’s authority to “mandates under the League of Nations strategy and, in any respects, to the situations of Germany and Austria after planet War II” as a brief justification for the HR’s Bonn Powers. The Court introduced the concept of “functional duality”, wherein the HR acts as both an authority of BiH and a typical of the global community, a legal framework rationalized in U 9/00. This decision established a precedent where the Court has declined to question the HR’s decisions, effectively blocking legal recourse for home authorities.
The Court’s comparison is unsound. First, the League mandates under Article 22 of the Covenant were created explicitly for “colonies and territories… which are inhabited by peoples not yet able to stand by themselves under the strenuous conditions of the modern world”. However, the DPA defines BiH as a sovereign state and Annex 4 requests the Constitutional Court to decide disputes, “including provisions concerning the sovereignty and territorial integrity”. Furthermore, post-war Austria and Germany were occupied. The Allies in post-war Germany imposed their decrees, whereas the OHR was conceived not as an occupying force, but as a mediator focused on pursuing the implementation of peace.
As 3 out of 9 judges on the Constitutional Court are foreign, its bias is unsurprising. Alex Schwartz observes that its decisions frequently “reflect disagreement between those judges who favour the OHR’s efforts to centralize power and those who favour autonomy for the substate entities”. Schwartz notes that abroad judges do not function as neutral moderates but are “more likely than not to tip the balance in favour of the Bosniak wing of the Court”, frequently opposing Croats and Serbs on the “more decentralist wing”. The erstwhile abroad justice Joseph Marko — who played a central function in key decisions between 1997 and 2002 — was identified as having “the most centralist perfect point”.
The advanced Representative’s decisions exceed the “Bonn Powers” mandate
Not only do the HR’s “binding decisions” exceed the intended scope of their authority under the DPA and UNSC, they besides surpass the mandate established at the PIC Bonn Conference in 1997.
The PIC Bonn Conclusions’ Article XI.2(b) states that PIC “welcomes the advanced Representative’s intention” to “mak[e] binding decisions” on the following:
“[I]nterim measures to take effect erstwhile parties are incapable to scope an agreement, and which will stay in force until the Presidency or the Council of Ministers has adopted a decision consistent with the Peace Agreement on the issue concerned.”
Three examples item the legal overreach of the HR beyond the scope of the Bonn Powers. First, the HR suspended in 2011 the decisions of the Central Election Commission (CEC), stating his decision would stay in effect “until specified time as the advanced typical decides otherwise”. As a result, the Croat representatives, despite securing an overwhelming majority in Croat areas in BiH, were excluded from the power-sharing government. This decision departs from Article XI.2(b) of the PIC Bonn Conclusions, which only allows “interim measures… until the [BiH] Presidency or Council of Ministers has adopted a decision consistent with the Peace Agreement”. The HR’s suspension bypasses this request and prevents home institutions from responding, which runs contrary to the Bonn framework.
Second, the HR has unilaterally amended the constitutions of both entities — RS and the Bosniak-Croat Federation — rendering them unrecognizable compared to their 1995 versions. In 2023, the HR removed the Bosniak veto in the Federation to resolve a political deadlock. This measurement was neither interim nor subject to organization challenge, violating the PIC Bonn request that the Presidency or Council of Ministers must hold the ability to adopt a decision consistent with the DPA.
Third, in 2023, the HR imposed amendments to the BiH Criminal Code. The HR prescribed that those who obstruct the implementation of decisions made by the HR “shall be punished with imprisonment for a word ranging from six months to 5 years”. This decision is simply a key driver of the ongoing legal and political dispute between the HR and RS leadership. The HR bypassed the BiH Presidency and Council of Ministers — institutions designated by the Bonn Conclusions as key executive bodies with which the HR should cooperate to resolve deadlocks. There is no mention of the HR having authority over the parliament, either in the PIC Bonn Conclusions or in the DPA, as it was intended that the HR would not make decisions for the parliament.
The HR prescribes the adoption of the Criminal Code amendments “on an interim basis until specified time as the Parliamentary Assembly of Bosnia and Herzegovina adopts this Law in due form, without amendment and with no conditions attached”. This quasi-colonial formulation appears in many HR decisions and is inconsistent with the PIC Bonn Conclusions, peculiarly due to the fact that it precludes home institutions from adopting “a decision consistent with the Peace Agreement”. The HR treats the interim decision as final and obliges the parliament to adopt it without any anticipation of amendment. Here, it is implausible to propose that any home body would voluntarily incorporate the function of the HR into the BiH Criminal Code. This fundamentally exceeds the first intent of Annex 10, and the application of OHR’s amendments on the Criminal Code to home leaders may possibly violate ECHR Article 7 as it “prohibits the retrospective application of the criminal law where it is to an accused’s disadvantage”.
Each of these examples has exacerbated inter-ethnic tensions, while simultaneously remaining entangled in the actions and responses of home leaders, further entrenching ethno-national divisions. This pattern has persisted for nearly 3 decades.
The appointment of the advanced Representatives
Annex 10 clarifies that “the Parties request the designation of a advanced Representative, to be appointed consistent with applicable United Nations safety Council resolutions.” Christian Schmidt, the erstwhile German agriculture minister, was nominated by the PIC on May 27th 2021. On June 3th, the erstwhile HR Valentin Inzko submitted an official letter informing the UNSC about this decision. However, contrary to all erstwhile instances, the UNSC did not respond. The OHR asserts in a statement that “expression of support in resolutions is not obligatory.” However, from 1995 to 2021, the UNSC had consistently endorsed the nomination of the HR in the text of its resolutions. The only exception was the nomination of Christian Schwarz-Schilling in 2006, but even in this case the UNSC “welcomed the decision of the Peace Implementation Council” in a letter addressed to the UN Secretary-General (UNSG) on January 30th 2006. This was after his nomination had been “brought to the attention of the members of the safety Council”. As a result, Schmidt remains the only HR whose nomination has not been verified by the UNSC.
The OHR cites UNSG Guterres’ July 14th 2023 letter addressed to the Serb associate of the Presidency of BiH Željka Cvijanović affirming the PIC’s primacy over UNSC. UNSG Guterres claims that the PIC Steering Board is “the applicable body”. However, this argument lacks force as Annex 10 omits the UNSG from appointment processes, limiting him to reporting (Article III.2[c]). At the same time, the UNSG’s administrative function (the UN Charter’s Chapter XV) cannot override UNSC authority in the nomination process mentioned in Annex 10.
Annex 10 clearly ties the HR’s designation to UNSC authority, reflecting the DPA’s intent to embed civilian oversight within the UNSC. The PIC’s unilateral appointment of Schmidt lacks the UNSC verification seen in prior cases, besides violating Annex 10’s mandate. The OHR’s assertion regarding the PIC’s autonomy subsequently collapses due to legal overreach. To sum up, the PIC is absent from Annex 10’s text and lacks a UNSC mandate to nominate the HR.
The UNSC’s function in HR appointments is not a “courtesy” but an imperative under Annex 10 and UNSCR 1031. The PIC’s unilateral action in this case lacks a crucial legal anchor.
Reconsidering the “Bonn Powers”
British Ambassador Crawford’s early warnings about the illegality of the Bonn Powers now appear prescient. The time has come to critically examine their legal foundation. Until then, BiH leaders are likely to proceed challenging the authority of the HR, especially in light of Schmidt’s legally dubious nomination.
The UNSC now has 3 options. First, it could formalize the current power structure. This would consequence in the de facto business of BiH by the PIC Steering Board, which contradicts the Dayton Agreement’s affirmation of local sovereignty. Second, it could legalize the Bonn Powers. However, there should be transparent global review mechanisms for each decision, including the participation of all DPA signatories in this process. Third, it could forbid the Bonn Powers in accordance with requests from the EU and the CoE, which argue that “it is surely not a average situation that an unelected foreigner exercises specified powers.”
As global consensus on the OHR’s legitimacy erodes 30 years after the Dayton Agreement, the time has come to end abroad governance through the Bonn Powers and convene a fresh global dialog — a Dayton II — to reinvent BiH’s system, reconstruct legal clarity, and prevent a descent into an ethno-national, Cyprus-style frozen conflict.
Ivan Pepić is simply a investigation collaborator at the Department of Political discipline and global Relations, University of Geneva, Switzerland. He holds a PhD in Political discipline (University of Geneva), with a specialization in political systems related to ethnonationalism and profoundly divided post-conflict societies. @Ivan_Pepic
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