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In Geneva on 8 September 1995, Assistant Secretary of State Richard Holbrooke persuaded the Foreign Ministers of Bosnia, Croatia and Serbia to agree to a framework set of principles that are intended to guide the forthcoming settlement negotiations.
These 'Agreed Basic Principles' provide that, while Bosnia will continue with its legal existence within its present borders and continued international recognition, it will consist of two 'entities': the Bosnian Federation and the Republika Srpska. Its territory will be divided roughly equally between the two, which will operate under their existing constitutions and have the right to enter into 'parallel relationships with neighbouring states'. The 'Agreed Principles' further provide that refugees have a right to repossess their homes or receive just compensation.
While clothed in the rhetoric of continued international recognition and respect for Bosnia's territorial integrity, the Principles violate five of the most basic tenets of international law.
1.Territorial Integrity. The Principles rely upon the distinctly non-legal concepts of 'entities' and 'parallel special relationships' to serve as functional conduits for the partition of Bosnia in direct breach of its universally recognised right to territorial integrity. By permitting the 'entity' of Republika Srpska to control half of Bosnia's territory and then effectively confederate that half with Serbia/Montenegro, the 'Agreed Basic Principles' permit de facto division of Bosnia and provide a de jure rationale.
2.Sovereignty. The principle of sovereignty is not only the cornerstone of international justice, but also the basis for equitable participation in the community of nations. By permitting Republika Srpska to operate under its constitution -a distinctly non-legal document - the 'Agreed Basic Principles' erode and replace Bosnian government sovereignty over half of its territory.
These Principles would transfer the sovereignty to the 'government' of an entity that, according to its constitution, is an independent state 'of the Serb people', consisting of 'regions of Serb ethnic entities', which 'shall cooperate with the Serb Orthodox Church in all fields'. In addition, this entity claims to be a 'part of the federal state of Yugoslavia', whose citizens 'shall hold citizenship of the Republic and citizenship of Yugoslavia', and which shall have Sarajevo as its capital city.
3.Use of Force. From the UN Charter to the Helsinki Final Act, the use of force to effect territorial changes is strictly forbidden. However, not only do the 'Agreed Basic Principles' fail to condemn the genocidal use of force, they also reward Serbian President Slobodan Milosevic's blatant violation of these principles by granting him his long sought- after Greater Serbia. While any ceding of territory under these circumstances would violate international law, the allocation of half of Bosnia to Serbian control is particularly unjust because, prior to the war, ethnic Serbs constituted only thirty percent of Bosnia's population. Indeed, today no more than half of those, or fifteen percent of Bosnia's population, could be said to support inclusion in a Greater Serbia.
If the US negotiators's 'use of force' principle had been applied in World War II, Hitler would have been given legal control over sizeable portions of continental Europe, including half of Czechoslovakia on the basis of the two million ethnic Germans in the Sudetenland, and approximately one-third of France on the basis of the Germans in Alsace- Lorraine.
4.Genocide - To Prevent and Punish. The UN Convention on Genocide obliges states to prevent and punish crimes of Genocide. Both the political leader Radovan Karadzic and the military leader Ratko Mladic of Republika Srpska have been indicted on charges of Genocide by the UN War Crimes Tribunal. Yet the United States is encouraging and rewarding these indicted war criminals by offering them their own 'ethnically pure' state, carved out of the very state and to the detriment of the very people against which they have committed the crime of Genocide.
5.Refugees - Right of Return. Under international law, refugees have the unambiguous right of return to the area of their former homes. Period. The 'Agreed Basic Principles' first transform the right of return from a human right to a property right by modifying it from a right of return to a right of repossession of the refugees' physical property. They then create a gaping hole in this right, by providing that the refugees can be offered compensation rather than be permitted to exercise the right of return.
When confronted with this abandonment of the principles that attempt to ensure justice and fairness on the world scene, Holbrooke responded: 'The international legitimacy of the [Agreed Basic Principles] is not an issue... We stopped looking at this from a point of fine principles long time ago.'
Since when have the basic principles of territorial integrity, sovereignty, the prevention of Genocide, and rights of refugees become 'fine principles'? And by what right does the United States now forsake Bosnia's legitimate claim to these rights?
Until now, Serbia could count on its apologists in the West to rewrite Bosnian history, the British to insist on continuation of the illegal arms embargo, the Russian to adopt genocide as their own domestic policy in Chechnya, the Dutch to close their eyes to 'ethnic cleansing' occurring on their watch in Srebrenica, and the UN Secretary General, through his illegitimate and excessively narrow interpretation of the UN mandate, to hinder any preventive action. Now one can add the United States to the list of those participating in unprincipled diplomacy.
The Administration's abandonment of principle is all the more disturbing because it is only a first step. One must wonder what will follow. The United States could now allow Serbia/Montenegro to continue the international status of Yugoslavia and claim its UN seat as well as its assets and diplomatic property. Indeed, Holbrooke already suggested this directly in Geneva by referring to Serbia as 'the Federal Republic of Yugoslavia'.*
The United States could also officially recognise Republika Srpska. Or it could require the Bosnian government to share its UN seat and hard-earned international recognition with its genocidal brethren from the Serbian 'entity'. When the overarching tenet of diplomacy becomes 'the art of the deal' rather than principles of international law, anything is possible.
* Editor's note. Assistant Secretary of State Richard Holbrooke and Secretary of State Warren Christopher reportedly favoured suspending sanctions against Serbia to reward Milosevic before peace negotiations began. US Permanent Representative to the UN Madeleine Albright reportedly blocked their proposal. However, Mr Christopher said on 28 October that the US would make use of sanctions relief to encourage and reward Serbian cooperation. See Balkan Watch, International Edition, Washington, 30 October 1995.