Bosnia’s Incomplete Transition: Between Dayton and Europe
Europe Report N°198
9 Mar 2009
EXECUTIVE SUMMARY AND RECOMMENDATIONS
While Bosnia and Herzegovina’s time as an international protectorate is ending, which is in itself most welcome, now is the wrong time to rush the transition. The state put together by the 1995 Dayton Peace Agreement after a long war will never be secure and able to take its place in the European Union (EU) until it is responsible for the consequences of its own decisions. But tensions are currently high and stability is deteriorating, as Bosniaks and Serbs play a zero-sum game to upset the Dayton settlement. Progress toward EU membership is stalled, and requirements set in 2008 for ending the protectorate have not been not met.
The international community should decide, at the important meeting on 26-27 March of the Peace Implementation Council (PIC), the international body that oversees Dayton, not to end the mandate of the High Representative and his office (OHR) by 30 June 2009, as has been foreshadowed. Rather, it should appoint a new High Representative and resolve to maintain the office until all seven of the 2008 requirements – five “objectives” and two “conditions” – are met, both to retain its own credibility and to keep in place powers that would help resolve immediate problems. Once the protectorate does end, hopefully by the end of 2009, a strong EU mission will be needed to continue encouraging Bosnia toward European integration. Brussels and member states should begin now to focus on the specific powers their Special Representative (EUSR) requires and resolve to serve as guarantors of the Dayton agreement.
The OHR is no longer the motor driving Bosnia forward, and it is too late for it to resume that role in any open-ended way. The PIC announced already in 2006 that it wanted to close the OHR and rely henceforth on the EU. The PIC hoped this would spur Bosnia to qualify faster for EU membership, but the opposite has happened: left largely to themselves, Bosnian leaders have become locked in a standstill, and some reforms have begun to unravel. Some argue that the shock therapy of an end to the OHR would have a salutary effect on politicians who have grown accustomed to being protected against the worst effects of their irresponsible behaviour. There are four arguments, however, against an immediate end to the OHR’s role.
First, international credibility took a big hit in 2007 when the EU signed a Stabilisation and Association Agreement (SAA) with Bosnia – a major step in the accession process – even though specific police legislation it had strenuously insisted was a precondition had not been adopted, and the High Representative was engaged in a related confrontation with the leader of the Republika Srpska (RS), the Serb entity. The closing of the OHR while two objectives (resolving the status of the Brčko District and dealing with state property) and one condition (full compliance with the Dayton agreement) identified by the PIC in 2008 as requirements remain unmet would risk crippling the EU’s ability to apply firm policies toward Bosnia long after the protectorate itself has ended. It would also weaken EU credibility throughout the region, notably in Kosovo.
Secondly, there are some positive political signs whose development may be partly dependent on not prematurely closing the OHR. Since November 2008, leaders of the Bosniak, Serb and Croat communities have been making tentative efforts toward a workable compromise, including on the PIC requirements and constitutional reform. They are under attack from their own hardliners, none more so than the Bosniaks. Serb leaders are being conciliatory because they want the OHR to close; the Bosniaks and Croats are more interested in constitutional reform and are leveraging the prospect of that closure to overcome Serb reluctance. Doing away with OHR now could kill the initiative by removing perhaps the main incentive for compromise.
Thirdly, OHR can make some short-term contributions by judicious use of the High Representative’s special (Bonn) powers. Bosnian leaders still fear sanctions, including dismissal from office, that can be imposed for egregious Dayton violations. OHR can also act in less disruptive but equally important ways, as shown by a recent salary freeze that spurred Brčko municipal councillors into rapid action. The High Representative should hold his or her major powers in reserve but act creatively to unblock deliberate obstruction.
Finally, the EU can and should take advantage of a brief OHR respite to prepare better for the fuller responsibilities it will soon inherit. Enlargement is the traditional tool it has been using, mostly to excellent effect, to build peace and security in Europe’s eastern reaches, including the Western Balkans. But Bosnia is unlike the other accession countries. Its recent war still has political, social and economic effects. Uniquely in Europe, its political system stems from a wartime compromise between hostile factions. If the EU approaches Bosnia like any other accession country, it will fail.
Local decision-makers place different values on European integration and the steps they must take to reach it. They deploy those differences against each other, blocking progress towards the ultimate membership goal in the process. Hardliners on all sides recognise that advancing toward Europe means giving up their ideal solutions: the Serbs know that as Bosnia draws closer to Brussels, it will be harder for them to break away; the Bosniaks fear that reducing RS autonomy will be impossible. This gives both a reason to hold back, and both secretly hope to win the EU and U.S. to their side by remaining intransigent.
Brussels needs to reassess what Bosnia’s unique environment requires, first formulating a member-state consensus on the security stakes and making a corresponding political commitment to see the task through, including by guaranteeing Dayton. This will help ensure that its post-OHR mission in Sarajevo is not hobbled by weak political support as the OHR itself too often has been. It should give its Special Representative a mandate to facilitate efforts by Bosnian actors to compromise, but also to control the flow of pre-accession funds; monitor Dayton compliance and progress toward membership; make tough recommendations on targeted diplomatic, political and economic sanctions, if necessary; and keep all actors, including the UN Security Council, abreast of developments so they can react quickly to any dangers. The Obama administration should recommit to helping Bosnia in the interest of wider stability in the historically explosive and still somewhat fragile region that was Yugoslavia. It can do that best by working with and supporting the EU, which has greater resources to lead on this job.
1. Use the 26-27 March 2009 meeting to:
a) appoint a new High Representative and affirm that his or her executive (Bonn) powers remain available to deal with serious threats or violations of the Dayton Peace Agreement and to act in place of the national government if it is temporarily prevented from acting;
b) affirm that the OHR will remain until Bosnia has fully met the two remaining PIC objectives (adoption by the Parliamentary Assembly of a law regulating the disposition of state, including defence, property and a constitutional amendment regulating the status of the Brčko District) and the one remaining PIC condition (full compliance with the Dayton agreement); and
c) indicate that once Bosnia satisfies those requirements, such that no serious challenges to the Dayton agreement remain, the OHR will close without delay.
2. Announce that the High Representative will not henceforth use the Bonn Powers except to:
a) prevent serious threats to and violations of the Dayton Peace Agreement, including attempts to abolish or reduce the entities unilaterally or to violate the sovereignty of the state;
b) act in place of the Bosnian state executive if it is temporarily unwilling or unable to fulfil its duties, including in matters of appointments, dismissals, salaries and benefits; and
c) extend the mandate of international legal staff for up to two years if the Parliamentary Assembly has not done so.
3. Work with the legislatures of Bosnia and Herzegovina and of the entities to fill any legal or regulatory gaps that depend on OHR action.
4. Offer to facilitate the Bosnian political process, assist in resolving deadlocks and mediate discussions on constitutional reform and advancing European integration.
5. Authorise the EU presidency to negotiate an agreement with Bosnia and Herzegovina guaranteeing the Dayton Peace Agreement, pursuant to which the EU would specifically pledge that it will not recognise or accept:
a) any solution to the state’s problems imposed on one or more of its constituent nations without consent;
b) abolition of one or both entities or deprivation of their rights without consent; and
c) an entity’s unilateral withdrawal from the state or its institutions.
6. Establish, upon closure of the OHR, an EU mission headed by a senior official double-hatted as EU Special Representative and Head of the Delegation of the European Commission, whose mandate should be, in particular, to:
a) maintain close contact with and offer advice and facilitation to the government of Bosnia and Herzegovina, its entities and other political actors;
b) monitor, report and advise on compliance with the Dayton Peace Agreement and the country’s progress in the Stabilisation and Association Process;
c) monitor, report on and assist in the process of bringing Bosnia’s legislation into compliance with the EU’s acquis communautaire and strengthening the capacity of Bosnian institutions to implement and enforce this legislation;
d) disburse or restrict Instrument for Pre-accession Assistance funds – which should be significantly increased – as deemed appropriate to encourage progress toward European integration; and
e) make recommendations, as may be required, regarding visa bans, asset freezes and suspension of the Stabilisation and Association Agreement (SAA).
7. Maintain Operation ALTHEA (EUFOR) and use it to contribute to training the Bosnian military, including through joint exercises, at least for the duration of the OHR. Thereafter, conclude an agreement on the use of military facilities for such joint exercises and for training European forces to conduct European Security and Defence Policy (ESDP) missions. It should not, however, renew the European Union Police Mission (EUPM) when its mandate expires in December 2009.
8. Welcome by resolution, once the OHR closes, the EU’s support for the maintenance of peace and stability in Bosnia and Herzegovina and invite the EUSR to report regularly to the Council and other interested parties, including the signatories of the Dayton Peace Agreement.
9. Continue to support the OHR, and especially after closure of that office, cooperate closely with the EUSR, including through the U.S. embassy in Sarajevo and by seconding expert and technical staff to the EU mission.
10. Increase NATO’s presence in Bosnia and Herzegovina by concluding agreements on the use of military facilities for NATO training operations and by scheduling more frequent joint exercises.
Sarajevo/Brussels, 9 March 2009