The situation in Kosovo up to 1999, and all attempts which failed in order to find a just and lasting solution for that problem, have fully justified the above criteria for a lawful humanitarian intervention which was undertaken by the NATO forces against the territory of the Federal Republic of Yugoslavia. It seems, however, that the responsible persons in the NATO were not aware of the competence of the International Criminal Tribunal for the former Yugoslavia to investigate to prosecute persons responsible for use of prohibited arms and for destruction of some objects. Some of these unlawful acts constitute grave breaches of the 1959 Geneva Conventions and violations of laws and customs of war. In these circumstances it is the legal duty of the Prosecutor to undertake an investigation. In case that he fails in his duty, there are no statutory limits in respect of the crimes provided in the Statute of the Tribunal. (SOI : SOEU: S. 98f.) + Most legal writers in their writings confuse notions of humanitarian intervention, intervention of a State in order to protect its citizens abroad and humanitarian relief. The use of force for protection of citizens abroad, when they are in immediate danger of losing their lives or suffering serious injury, can exceptionally be justified by a state of necessity as regulated in article 33 of Drafts Article on State Responsibility by the International Law Commission. Further conditions for such an intervention are provided in the wording of the US State Secretar, Daniel Webster in the Caroline case of 1837, relating to the self-defence. Actions of humanitarian relief have nothing unlawful in their character, but a question can arise of the obligation of parties to a conflict to receive and allow its distribution to a who are in need. The 1949 Geneva Conventions and the First Protocol of 1977, provide in this respect a legal obligation of all parties to internation armed conflicts. Such relief actions can be imposed as obligation to parties to internal armed conflicts as well, by UN Security Council resolutions based on Chap. VII of the UN Charter. + In the view of this author there is no rule of positive international law granting a right to foreign States to intervene by force, either in protection of their citizens, or when a humanitarian intervention is required. The matter can only be of exceptional circumstances precluding wrongfulness of the use of force, which otherwise remains prohibited. When the matter is of humanitarian intervention, circumstances precluding the wrongfulness would, according to this author, be the following: (1) There should be a situation of systematic, repeated and widespread commission of international crimes by a State authority against its own citizens. Special problems are created to the international community by widespread practices of ethnic cleansing. (2) Such a situation constitutes itself a "threat to the peace" calling for an enforcement action by the Security Council according to the Chap. VII of the UN Charter. (3) In case that the Security Council fails in its primary responsibility of maintaining international peace and security and when there are no other means, a group of States or an organization can undertake a humanitarian intervention by use of force in order to stop the commission of crimes. In these circumstances it acts as de facto organ of the entire international community of States. (4) In these extreme and exceptional circumstances, States taking part in such an action cannot obtain any advantages in their profit. (5) Collective intervention by a single State acting in the name of several other States or an organization. However, even such an intervention should have priority over humanitarian intervention undertaken by a State acting in its o name. (6) It is self-evident that in performing a humanitarian intervention there should not be committed international crimes especially against protected persons, including civilian population
Nowadays, there are divided opinions in Bosnia and Herzegovina when it comes to further mandate of the OHR and the institution of the High Representative. However, the e nd of the mandate of the High Representative is realistically expected in the near future. The need to abolish the office of the OHR and the institution of the High Representative has been mentioned increasingly in Bosnia and Herzegovina, especially in the Republic of Srpska. The reasons for the abolition of the function of the High Representative are different between the entities in Bosnia and Herzegovina as well as among its constitutive peoples. The authority of the High Representative has been increasingly questioned.It is on that basis that questions arise more frequently whether his (High Representative) legal acts will be valid, in particular individual decisions, such as deprivation of certain rights to citizens, the right to work, political action and passive right to vote. Representatives of the international community are worried that the interested domestic political circles could set a thesis (and be successful at it) that all acts of the High Representative will cease to apply at the moment when Annex X of the General Framework Agreement for Peace in Bosnia and Herzegovina is ended.A number of imposed laws not yet adopted by the local legislator himself, in the event of cancellation, would actually return BiH to the original competences under the Constitution BiH, as the legal consequence. The institution of the High Representative was set up by Annex X (Agreement on Civilian Implementation of the Peaceful Solution) of the General Framework Agreement for Peace in Bosnia and Herzegovina.Simultaneously, bearing in mind these facts, legally speaking, Bosnia and Herzegovina can not be classified into any known form of international dependence, however, the objective situation is such that Bosnia and Herzegovina with the powers vested in the High Representative and the actions that he is taking, can be considered a state with a specific form of international dependence and a special form of guardianship.
This article analyses the weaknesses of contemporary democratic orders which stem from the use of modern manipulation techniques employed by those who manage to win the trust for making the government in democratic elections. Contemporary democracies are under the threat of populist promises which are most often unrealistic. The combination of populism and democracy is usually a product of the powerlessness of political elites, i.e. political parties, in states to solve citizenry's most important problems – to increase the growth and development of the economic system, to introduce the rule of law, and to rehabilitate political institutions so they could rationally and efficiently function within the political system. Contemporary democracies are not equally developed, nor do they have equal chances for developing. The facts demonstrate how in many societies and states – formally oriented towards establishing a democratic governance and towards starting the democratisation of societal and political life – democracy gets misused and diminished to democratic phraseology with the help of populism, while in the institutional aspect being diminished to creating a façade of democratic institutions. It has been demonstrated that the patterns of dominance follow and are characteristic for democratic governances to a larger or smaller degree. The essence of democratic governance are politically responsible decisions, rather than mass participation in making political decisions which are not realistic, while being dangerous in terms of their consequences. Democracy means making good decisions for the benefit and good of all citizens, while hierarchy must not be challenged when it is necessary that institutions function in a rational and efficient way. Introducing equality where professionalism, competence and accountability are needed is devastating for the functioning of institutions, therefore for the functioning of democracy as well. Democracy can be tricked with the help of authorities'populism, as was the case with Nazi Germany. After Nazis took power, not all institutions of the Weimar Republic were dismantled nor challenged, nor was the Weimar Constitution changed. However – parallel to state authorities, Constitution and laws – dozens of new orders and laws were enacted, creating an illusion that nothing is changed in German state. What Nazis did was developing a new mechanism, party mechanism, parallel to the state mechanism. The two functioned next to each other. Such patterns lead to the parallelism of power and democracy, which usually led to the totalitarianisation of democracy. In contemporary states – especially those in the process of democratic transition – such parallelism shows how party leaders do not forfeit party leadership once they get elected to state offices. In that way democracies become submissive and captured by political parties, especially their leaderships and leaders. The relation of freedom and democracy has also been analysed. Experiences show that democracy is founded more successfully in places where people managed to gain their liberties, rather than in those places where democracy is yet to provide liberties to citizens. Dangers for democracy tied with the abuse of democratic conditions are being discusses in the last part of the article. Each condition necessary for the functioning of a democratic order can be simulated through manipulative ways. A special danger for contemporary democracies comes from circumstances in which those who come to power do everything so that society and state are riled by anti-political principles: indifference, fear and trepidation, and powerlessness. Anti-political principles jeopardise democratic order, and those who use them demolish democracy. Democracy is facing constant challenges and temptations for scraping democracy in the name of democracy.
Stvaranje Evropske unije bespovratno je narušilo tradicionalno ustrojstvo drţava, pa i samog meĊunarodnog poretka. Uspostavljanje strukture koja obuhvata više centara moći u okviru kojih se (ne)ravnopravno donose odluke od znaĉaja za ţivot graĊana, uticalo je na slabljenje nacionalnih, a nedovoljnu samostalnost nadnacionalnog nivoa unutar nje. Stalno pregovaranje i lobiranje na kojima poĉiva Unija pruţa mogućnost za ostvarivanje ciljeva pojedinih interesnih grupa i drţava. Koncept demokratije je ovakvim stanjem najviše izgubio. Pojаm demokrаtije je teško definisаti, isto koliko je komplikovаno pronаći kriterijume za njeno identifikovanje a koji su primjenljivi nа sve politiĉke sisteme. Situаcijа se dodаtno usloţnjаvа kаdа je ove kriterijume neophodno prepoznati u okviru nedovršenog politiĉkog sistema kаkаv je onаj u Evropskoj uniji. Problemi u demokrаtskoj legitimizаciji Unije, koji se jаvljаju uporedo sа uspjesimа u integrаciji, otvаrаju pitаnje primjenljivosti "stаndаrdnog" modelа demokrаtije nа ovu tvorevinu. Prirodа funkcionisаnjа Evropske unije, u kojoj je na snazi uprаvljаnje nа više nivoа, zаhtijevа prilаgoĊаvаnje demokrаtskih principа njenom specifiĉnom politiĉkom sistemu. Mada ne postoji konsenzus meĊu teoretiĉаrima koji su dali doprinos objašnjavanju pojma demokratije u Evropskoj uniji dа li postoji demokratski deficit unutar nje, kаo ni koji su nаjbolji uslovi zа rаzvoj аutentiĉne demokrаtije u EU, moguće je identifikovati brojne strukturne probleme demokratije u politiĉkom sistemu Evropske unije. U okviru postojećeg institucionаlnog mehаnizmа Evropske unije problemi nastaju usljed isprepletenih nаdleţnosti izmeĊu institucijа i osjetnog jаĉаnjа izvršne u odnosu nа zаkonodаvnu grаnu vlаsti. Centrаlnu ulogu od institucija imа Sаvjet koji funkcioniše po principu meĊuvlаdine sаrаdnje. Prаktiĉno nijednа evropskа politikа ne moţe se usvojiti bez djelovаnjа ove institucije i uplitаnjа drţаvа ĉlаnicа, što Savjet ĉini glavnim zakonodavnim tijelom Unije. Evropski parlament, sa druge strane, iako neposredno izabran, zbog svojih još uvijek ogrаniĉenih nаdleţnosti, i dаlje je glаvni uzroĉnik demokrаtskog deficitа u Uniji. Stoga bi talas demokratizacije institucija Unije trebalo da obuhvati "prelivаnje" moći sа Sаvjetа nа Evropski pаrlаment i jаĉаnje meĊuinstitucionаlne sаrаdnje izmeĊu Evropskog pаrlаmentа i Evropske komisije. Evropskа unijа nemа ureĊenje poput trаdicionаlne nаcionаlne drţаve. Ne postoji ni demos nа evropskom nivou, te, stoga, nemа ko dа obezbijedi neophodni legitimitet evropskim politikama. Iako je nesumnjivo da politike Evropske unije proizvode velike koristi zа njene grаĊаne, ovа reаlnost, zаjedno sа rаzvijenim mehаnizmimа konsultovаnjа sа grаĊаnimа, ipаk ne umаnjuje kljuĉni problem u komunikаciji Unija – graĎani: mаnjаk аdekvаtnog predstаvljаnjа grаĊаnа, što je zа zаjednicu kojа se u svojim osnivаĉkim dokumentimа deklаriše kаo predstavniĉka ipak nedostаtаk. Ni sаmi grаĊаni ne pokreću politiĉku debаtu o specifiĉnim evropskim pitаnjimа nа nivou koji bi bio izаzov zа nаcionаlne vlаde. Demokrаtskа legitimizаcijа evropskih institucijа zаhtijevа i veću ulogu politiĉkih pаrtijа i njihovu revitаlizаciju nа evropskom nivou, kao i otvoreno politiĉko takmiĉenje koje ukljuĉuje grаĊаne. Proces integrisаnjа zemаljа Evropske unije prouzrokovаo je ozbiljne demokrаtske probleme ne sаmo nа nivou Unije, već i u drţаvаmа ĉlаnicаmа. "Problemi demokratije" u drţavama ĉlanicama koji proizilaze iz funkcionisanja Unije drugаĉije se reflektuju u rаzliĉitim nаcionаlnim politiĉkim sistemimа. Pritisku koji dolаzi od integrisаnjа unutar Evropske unije bolje se prilagoĊavaju drţаve koje imаju federаlno od onih koje imаju unitаrno ureĊenje. Federаlni kаrаkter ureĊenjа u drţаvi već podrаzumijevа više nivoа odluĉivаnjа i decentrаlizаciju vlasti, pа se ovаj sistem lаkše prilаgoĊаvа uprаvljаnju nа više nivoа unutаr Evropske unije. To ne moţe biti sluĉаj sа zemljаmа koje su trаdicionаlno centrаlizovаne. Dalji razvoj Evropske unije moţe ići u pravcu zadrţavanja trenutnih principa integrisanja uz obrazloţenje da su demokratske drţave ĉlanice garant legitimiteta Unije. Na taj naĉin bi i dalje meĊuvladin princip imao primat u odnosu na nadnacionalni. Model koji bi trаnsformisаo Evropsku uniju u zаjednicu demokrаtskog kаrаkterа jeste federаlni. Evropskа unijа posjeduje elemente federalizma, a toj konstrukciji nedostaje kаpаcitet zа oporezivаnje i mogućnost predlaganja izmjena osnivаĉkih, konstitutivnih, ugovora. Trenutno postojanje federalnih elemenata u funkcionisanju Unije ukazuje da njihovo dodatno osnaţivanje neće neminovno dovesti do njene trаnsformаcije u zajednicu federalnog karaktera, ali će svakako uticati na smanjivanje postojećeg demokratskog deficita.Nauĉno-istraţivaĉki pristup korišćen u ovom radu odreĊen je predmetom i ciljevima istraţivanja. Znaĉajnu primjenu imale su metodologija svojstvena politiĉkim naukama, komparativna metoda, analiza sadrţaja dokumenata, kao i specijalizacija. U dokazivanju postavljenih hipoteza primjenu su našle i sinteza, generalizacija, indukcija i dedukcija. ; The creation of the European Union has irreversibly undermined the traditional establishment of states, including the international order thereof. The establishment of a structure encompassing multiple power centers entailing (un)equal decision making relevant to the lives of citizens, has triggered the downturn in national, subsequently weakening the supranational level of autonomy within it. Constant negotiations and lobbying representing the cornerstones of the Union, provides for an opportunity for achieving the objectives of individual groups and states. In the light of the above, the democracy concept has suffered the most. The democracy concept is difficult to define, being leveraged by the complication in finding criteria for its identification which are applicable to all political systems. The situation is further complicated in case of a need to identify these criteria within an unfinished political system like the one in the European Union. The problems behind democratic legitimization of the Union, arising along with the integration success, are opening up the question of the applicability of "standard" democracy model to this creation. The nature of the European Union functioning governed by the multiple levels management, requires adjustment of the democratic principles to its specific political system. Although there is no consensus among theorists who have contributed to clarifying the democracy concept in the European Union on neither whether there is a democratic deficit within it, nor what are the best conditions for the development of a genuine democracy in the EU, nevertheless it is possible to identify a number of structural problems of democracy in the political system of the European Union. In the framework of existing institutional mechanism of the European Union, the problems arise because of overlapping responsibilities between the institutions and the appreciable strengthening of the executive over the legislative branch of government. The Council plays the central role, operating on the principle of intergovernmental cooperation. Practically not a single European policy may be adopted without the operation of this institution and the interference of the member states, making the Council the leading legislative authority of the Union. The European Parliament, on the other hand, although directly elected, due to its still limited competences, being the main trigger of the democratic deficit in the Union. Thus, the wave of democratization of the EU institutions should include the "spillover" of power from the Council to the European Parliament and strengthening the inter-institutional cooperation between the European Parliament and European Commission. The European Union has not been grounded as the traditional national state. Demos don"t exist at the European level and, therefore, there is no one to provide the necessary legitimacy of the European policies. Although undoubtedly, the European Union policies are generating great benefits for its citizens, this reality, along with developed mechanisms of consultation with citizens, however, does not reduce the key problem in communication between the Union - citizens: lack of adequate representation of citizens, representing a deficiency having in mind that its founding documents are declaring it as a representative Community. Even the citizens themselves are failing to launch political debate on specific issues at the European level that would be a challenge for the national governments. Democratic legitimization of European institutions requires a greater role of political parties and their revitalization at the European level, as well as open political competition involving the citizens The integration process of the European Union counties has caused serious democratic problems not only at the level of the Union, but also in the member states. "Democracy problems" in the member states deriving from the functioning of the Union are reflected differently in different national political systems. Unlike unitary governments, federal ones are better adapting to the pressure deriving form the integration within the European Union. Federal feature of organization in the state already implies the multiple levels of decision making and decentralization of powers, thus the system is easily adapting to the multiple levels of management within the European Union. This is not the case with countries that are traditionally centralized. The further EU development may be directed in retaining the current integration principles with the rationale that the democratic member states represent legitimacy guarantor of the Union. In the light of the above, the intergovernmental principle should supersede the supranational. However, a model that would transform the EU into a democratic community is federal. The European Union has elements of federalism and this structure lacks the capacity for taxation and possibility of proposing amendments to founding, constitutional contracts. Currently the existence of federal elements in the functioning of the Union is pinpointing that its further strengthening will not inevitably lead to the transformation of the Union into the community with federal character, but will most likely impact on reducing the existing democratic deficit However, the model that would transform the European Union into the Community with democratic feature is the federal one. The European Union has the federalism features, and this structure suffers the lack of taxation capacity and the option of proposing amendments to the founding and constitutional treaties. The current existence of federal elements within the functioning of the Union is implying that its additional strengthening will not inevitably generate the transformation of the Union into the Community of federal feature, yet it will affect the decline in the current democratic deficit. Scientific methods used in this thesis are based on specific topic and research objective. Therefore, the methodology inherent in political science, comparative method, content analysis of documents, as well as specialization are used to a large extent. In proving the hypotheses a great usage has found the synthesis, generalization, induction and deduction.
