Analysis of September 8, 1995 Geneva Agreement

MEMORANDUM

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


Dear Friends:

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