Ending the OHR’s “Bonn Powers” to save Bosnia and Herzegovina (again)

Zmaja od Bosne street in Sarajevo. Photo: Paul Prescott / Shutterstock

For the first time since the conclusion of the war in Bosnia and Herzegovina (BiH) thirty years ago, the United Nations Security Council (UNSC) has not welcomed the nomination of the High Representative (HR). This happened as a result of the former 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 used the so-called “Bonn Powers” to enact a law criminalizing any disregard for his decisions. One 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 other international official possesses such sweeping legislative and executive authority without a clear legal mandate from either a binding international agreement or the UNSC. This unaccountable power structure has created unprecedent tensions, including through Schmidt’s recent impositions that affect relations among the three 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 document 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 also says that the “High Representative is the final authority in theatre regarding interpretation 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 international community behind a new 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 necessary to safeguard the implementation of the civilian aspects of the peace agreement in the immediate post-conflict period. Two years later, at the annual PIC conference, held on December 9th and 10th 1997 in Bonn, the PIC welcomed “the High Representative’s intention to use his final authority” to resolve difficulties “by making binding decisions” concerning meetings; interim measures when parties disagree; and actions against officials. These mechanisms are better known as the “Bonn Powers”.

Yet, it is at the very least surprising 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 interpretation 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 instead conferred subsequently at the Bonn meeting. In its Madrid Declaration, the PIC expressly stated that “[w]e fully endorse the broad and substantial powers given to the High Representative 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 used the Bonn Powers, claims that they “are not very legal”. Notably, the PIC London Conclusions designated the HR as the chairman of the PIC SB. As a result, the PIC SB’s Chairman Westendorp effectively conferred nearly unlimited authority upon the HR. This arrangement constitutes an unparalleled conflict of interest. Adis Merdžanović defines this system “democracy by decree”. The Council of Europe (CoE) clearly states that “the justification for these powers in the future merits not only political but also legal consideration.” Gro Nystuen, legal advisor to the EU Special Envoy to the Former 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 international political power-play bluff… Sooner or later a direct legal challenge to these ‘powers’ was going to be mounted somewhere.”

The UN Security Council and the “Bonn Powers”

These claims illustrate that the PIC itself lacked the legal authority to confer such extensive powers upon the HR. The PIC could not delegate powers that are not specified in Annex 10, nor did the PIC possess such powers.

This brings the issue into the realm of treaty interpretation 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 faith in accordance with the ordinary 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 status 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,” rather than a power to render “binding decisions”. This is especially true since the implementation of the DPA is reserved to the Parties themselves.

Neither did the UNSC trust the PIC with the so-called 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 true in UNSCR 1031 and in subsequent annual resolutions adopted pursuant to it.

Follow-up UNSC resolutions adopted between 1999 and 2014 — while “reaffirming” the PIC Bonn Conclusions in their fourth operative paragraph — do so in a political and not a legal sense. They express political support for the role 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 High 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 use of wording in operative paragraphs to indicate its intention to create 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 a statement announcing or supporting a fact or principle, but it is not a word that conveys the notion of the origination of a new legal obligation under the authority of the Security Council, in the same manner as the words ‘decide’ or ‘demand’ do.” He also 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 mere “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 merely “reaffirms the High Representative’s final authority in theatre in the interpretation 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 reference 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 three decades has generated significant legal ambiguity. As Michael Wood has observed, UNSC resolutions “are often part of a series, and can only be understood as such”. This observation is particularly relevant in the context of UNSCR 1031 and its follow-up resolutions. The discrepancies among these resolutions over the past thirty 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 such references underscores the continuing lack of formal legal recognition by the Council.

The “Bonn Powers” and domestic courts

Domestic actors tried to challenge the High Representative’s binding decisions before domestic 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 system and, in some respects, to the situations of Germany and Austria after World 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 representative of the international 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 domestic 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 three out of nine judges on the Constitutional Court are foreign, its bias is unsurprising. Alex Schwartz observes that its decisions often “reflect disagreement between those judges who favor the OHR’s efforts to centralize power and those who favor autonomy for the substate entities”. Schwartz notes that foreign judges do not function as neutral moderates but are “more likely than not to tip the balance in favor of the Bosniak wing of the Court”, often opposing Croats and Serbs on the “more decentralist wing”. The former foreign judge Joseph Marko — who played a central role in key decisions between 1997 and 2002 — was identified as having “the most centralist ideal point”.

The High 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 also surpass the mandate established at the PIC Bonn Conference in 1997.

The PIC Bonn Conclusions’ Article XI.2(b) states that PIC “welcomes the High Representative’s intention” to “mak[e] binding decisions” on the following:

“[I]nterim measures to take effect when parties are unable to reach an agreement, and which will remain 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 highlight 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 remain in effect “until such time as the High Representative 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 requirement and prevents domestic 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 measure was neither interim nor subject to institutional challenge, violating the PIC Bonn requirement that the Presidency or Council of Ministers must retain 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 term ranging from six months to five years”. This decision is 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 such 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 numerous HR decisions and is inconsistent with the PIC Bonn Conclusions, particularly because it precludes domestic 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 possibility of amendment. Here, it is implausible to suggest that any domestic body would voluntarily incorporate the role of the HR into the BiH Criminal Code. This fundamentally exceeds the original intent of Annex 10, and the application of OHR’s amendments on the Criminal Code to domestic leaders may potentially 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 domestic leaders, further entrenching ethno-national divisions. This pattern has persisted for nearly three decades.

The appointment of the High Representatives

Annex 10 clarifies that “the Parties request the designation of a High Representative, to be appointed consistent with relevant United Nations Security Council resolutions.” Christian Schmidt, the former German agriculture minister, was nominated by the PIC on May 27th 2021. On June 3th, the former HR Valentin Inzko submitted an official letter informing the UNSC about this decision. However, contrary to all previous 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 Security 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 member of the Presidency of BiH Željka Cvijanović affirming the PIC’s primacy over UNSC. UNSG Guterres claims that the PIC Steering Board is “the relevant 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 role (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, also 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 role 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 continue challenging the authority of the HR, especially in light of Schmidt’s legally dubious nomination.

The UNSC now has three options. First, it could formalize the current power structure. This would result in the de facto occupation 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 international 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 certainly not a normal situation that an unelected foreigner exercises such powers.”

As global consensus on the OHR’s legitimacy erodes thirty years after the Dayton Agreement, the time has come to end foreign governance through the Bonn Powers and convene a new international dialogue — a Dayton II — to reinvent BiH’s system, restore legal clarity, and prevent a descent into an ethno-national, Cyprus-style frozen conflict.

Ivan Pepić is a research collaborator at the Department of Political Science and International Relations, University of Geneva, Switzerland. He holds a PhD in Political Science (University of Geneva), with a specialization in political systems related to ethnonationalism and deeply divided post-conflict societies. @Ivan_Pepic

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Balkans, Bosnia and Herzegovina, Bosnia and Herzegovina politics, United Nations