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In the exercise of the powers vested in me by Article V of Annex 10 of the
General Agreement for Peace in Bosnia and Herzegovina, according to which
the High Representative is the final authority regarding interpretation of
the civilian implementation aspects of the peace agreement, I hereby
establish the following
Decision
on the interpretation of Article V(5)(a) of Annex 4 to the General Agreement
for Peace in Bosnia and Herzegovina (the Constitution of BiH), in respect of
the civilian command over armed forces by each member of the Presidency, by
virtue of the office.
The interpretation shall be as follows:
I. As to civilian command
Civilian command authority over all armed forces in Bosnia and Herzegovina
is exercised by the Presidency as the competent institution of Bosnia and
Herzegovina. Such authority extends to all matters concerning the armed
forces, including personnel issues, but its exercise may, for particular
matters, be delegated by the Presidency to subordinate authorities in the
interests of efficiency. Where this is done, the Presidency always reserves
the right to overrule any decisions taken by those subordinate authorities.
II. As to the exercise of civilian command
In sovereign States, civilian command authority over armed forces is
normally exercised by the Head of State. In Bosnia and Herzegovina, where
the powers of the Head of State are invested in the Presidency, composed of
three Members, this is not different. This follows from the above Article
V(5)(a) itself, providing that each member of the Presidency, by virtue of
the office, has civilian command authority over armed forces in Bosnia and
Herzegovina.
Therefore, when the Presidency exercises its authority over armed forces, it
does this as an Institution, meaning that each Member is competent to take
part in the decision-making process regarding such armed forces. It is not
the Chair, but the Presidency, who is the civilian Commander in Chief. The
Presidency is to act and take decisions on this issue collectively.
The Constitution of BiH also requires that the Presidency select a Standing
Committee on Military Matters as the appropriate body to coordinate the
activities of armed forces in Bosnia and Herzegovina. Participants should
ensure it is an active forum in which to discuss all military matters.
According to Article III(3)(b) of the Constitution of Bosnia and
Herzegovina, the Entities are obliged to respect this Constitution and,
therefore, the principle established in Article V(5)(a) according to which
the civilian Command over the Armed Forces lies in the hands of the
Presidency of Bosnia and Herzegovina. This principle is reinforced by the
last sentence of this provision: "All armed forces in Bosnia and Herzegovina
shall operate consistently with the sovereignty and territorial integrity of
Bosnia and Herzegovina".
As the obligation of the Entities to respect the Presidency's civilian
Command over Armed Forces derives directly from the Constitution of Bosnia
and Herzegovina, the Entities may not and shall not invoke any provisions of
the Entity Constitutions to oppose or fail to comply completely with this
obligation. Any act of any authority other than the Presidency of BiH which
infringes on the Presidency's civilian Command over Armed Forces is null and
void.
The Constitutional Court is currently examining in a pending case, inter
alia, to what extent the Constitutions of the Entities must be modified in
order to make them compatible with the Constitution of Bosnia and
Herzegovina on this matter and will rule accordingly.
III. As to Annex 1A of the GFAP
During the mandate of the Stabilization Force (SFOR) nothing within this
Decision shall alter, replace or remove the obligation of Bosnia and
Herzegovina and its Entities to cooperate with, provide information to and
comply with the Instructions to Parties (ITP) and other SFOR instructions
made under Annex 1A to the GFAP.
The Decision will have immediate effect.
Sarajevo, 19 February 1999
Carlos Westendorp
High Representative
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