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Brčko Unsupervised

Europe Briefing N°66 8 Dec 2011

OVERVIEW

It is time to close international supervision of Bosnia’s Brčko District. Once seen as a model of post-war reconciliation and good government, it is drowning in corruption and mismanagement that flourished despite its supervisors’ best efforts. The territory is vital to Bosnia and Herzegovina (BiH)’s stability: it links the two halves of both Republika Srpska (RS) and the BiH Federation (FBiH), and belongs technically to both entities but is independently governed and multi-ethnic. Many of its former leaders are under suspicion in a corruption probe that may have only scratched the surface; several high profile development projects are collapsing in bankruptcy and litigation. RS has a strong influence on the district but is not threatening to undermine its status. Nevertheless, the international community should ensure that Serb leaders of that entity are left in no doubt that any move to take Brčko over would meet a strong reaction. Stability is now dependent on whether local politicians, law enforcement and the judiciary can take responsibility. International supervision is no longer helping, and a new strategy is needed.

A special international Arbitral Tribunal established as part of the Dayton Peace Accords created the Brčko District in August 1999 (the “Final Award”), under the exclusive sovereignty of Bosnia and Herzegovina as a multi-ethnic, democratic unit of local self-government. An international supervisor, who also serves as Deputy High Representative, was also appointed in 1997 to oversee implementation of the Dayton agreement in the Brčko area with executive authority to promulgate binding regulations and orders.

In 2009 the international community assessed that Brčko institutions were functioning effectively and apparently permanently, the main condition that had been set to enable closing down the special supervision. Since then additional conditions have been put mainly on the RS to demonstrate that it has no intention to usurp Brčko authority. The Serb entity is making no claim on the district, and apparently has formally fulfilled the final condition by acknowledging that the inter-entity boundary line (IEBL), which splits Bosnia’s two entities, does not run through Brčko.

This may appear the wrong time to end international supervision. The district faces its greatest crisis yet of governance and economic development, due to hardening political positions and endemic corruption. All Bosnia is being shaken by a political and economic crisis. Over a year since the October 2010 elections, there are neither a state government nor 2011-2012 state budgets. Some fear the RS is increasingly intent on declaring independence from BiH, and Brčko will become the site of renewed violence in connection with such manoeuvres. But supervision there involves only the town’s internal governance; it cannot affect BiH-wide security, which remains the responsibility of the already weakened High Representative (OHR) and the EU member state force (EUFOR).

The Brčko international supervisor has not stemmed corruption for more than a decade and has neither resources nor international support to impose change now. Retaining him as ultimately responsible in the town provides an easy way for local politicians to avoid finally exercising that responsibility and accountability which Bosnians must ultimately show themselves capable of to protect their own basic interests.

The FBiH has neglected Brčko District since its establishment, creating a vacuum RS is eager to fill. The Federation government, and the FBiH-based parties with branches in Brčko, should work to improve relations with local business and political elites to balance the weight of Banja Luka. For its part, RS has legitimate interests in the district and has contributed much to its economic revival; this benign influence should be encouraged to continue and grow. Working together through the BiH state, Serbs, Bosniaks and Croats should also cooperate in agreeing to locate at least one significant government agency in Brčko District. All should intensify efforts to fight local corruption, especially strengthening independence of police, prosecutors and judges.

Moreover, at the same time as the international community acts to compel local officials to take responsibility for their own affairs, it should take parallel steps to make clear that its commitment to the independence and territorial integrity of Bosnia remains firm and that any attempt by RS to violate the provisions of the Dayton peace dispensation including the special status of Brčko will be met decisively. RS’s interests in Brčko must not be allowed to lead to a belief that it can successfully question the Final Award. Accordingly:

  • At the Peace Implementation Council (PIC) meeting on 12-13 December, the Brčko supervisor should recommend that supervision close within a set number of months, but that the Arbitral Tribunal stay open as a safety mechanism. In case of a grave violation of Brčko’s autonomy by RS (or the FBiH), the retained tribunal could reopen supervision or modify the Final Award and assign the district to the other entity. Closing supervision and retaining the tribunal were not foreseen in the Dayton Peace Agreement or in the Final Award of 1999 but is being seriously considered by PIC members. It seems unlikely that a claim against this strategy could be sustained if the PIC Steering Board, the Brčko supervisor and the head of Brčko Arbitral Tribunal, U.S. diplomat Roberts B. Owen, agree to these steps, as they have to the maintenance of the tribunal twelve years after the Final Award was made.
  • The EU should give further indications of its intention to pay greater attention to Brčko. Its delegation to BiH should help Bosnian officials fight corruption through strengthening the rule of law and relevant institutions, and preparing for the EU accession, including by opening a new office in the district, as the regional office of the OHR headed by the supervisor closes. Most of the responsibility for adopting and implementing the acquis communautaire, the body of EU law, falls to Bosnia’s entities and cantons – and on Brčko, which has a much smaller capacity. It will need support through gradual reform. A useful first step would be for the supervisor in his final months to work with the government to encourage adoption of the Anti-Corruption Strategy for 2009-2014, which the EU could help implement.

Sarajevo/Istanbul/Brussels, 8 December 2011

 
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