Bosnia and Herzegovina’s (BiH) post-war status quo has ended but the international community risks muddling the transition by delaying decisions on a new kind of engagement. Republika Srpska (RS), one of the state’s two entities, has defied the High Representative, Bosnia’s international governor, and the international community has not backed him up. Instead, the U.S. and the European Union (EU) launched in October 2009 on the Butmir military base outside Sarajevo a high-level effort to persuade the country’s leaders to adopt far-reaching constitutional reforms and allow the mandate of the High Representative and his office (OHR) to end. Disagreements over the scope and content of reform make agreement uncertain. But Bosnia’s leaders should adopt as much of the EU-U.S. proposal as possible, and the international community should end its protectorate in favour of a new, EU- and NATO-led approach including strong security guarantees.

After fifteen years as an international protectorate, BiH still has to make significant and most likely gradual reforms to provide better governance and services to its citizens. But it is no longer on the verge of armed conflict. RS has no chance of successfully seceding. Indeed, a failed breakaway is now the only way RS could lose the extensive autonomy it has within BiH. Bosniaks, Serbs and Croats still need to develop consensus on the balance between centralisation and de-centralisation they want and on other power-sharing arrangements. But Bosnia must complete its transition to mature statehood now or risk regression.

The Peace Implementation Council (PIC), the inter­national body that oversees the Dayton Peace Agreement (DPA), will meet on 18 November, and two days later the UN Security Council will deliberate. Until then, the EU-U.S. “Butmir talks” are likely to continue. If they succeed, the OHR will close, and Bosnia will accelerate toward EU and NATO integration. If they fail, the international community will have a stark choice: reinforce the OHR for a lengthy political conflict with RS, or devise alternative means led by the EU Special Representative (EUSR). If the Butmir talks are still ongoing, the PIC may delay a decision on the OHR until early 2010, but a decision on transition should be taken before the country is preoccupied by a tense campaign for the October 2010 general election.

This is a sensitive and potentially dangerous moment, and much could go wrong. A minimalist agreement at Butmir and a decision on OHR closure at the next PIC meeting is still possible. More delay and indecision could be dangerous. Its important past achievements notwithstanding, the OHR has become more a part of Bosnia’s political disputes than a facilitator of solutions, and the High Representative’s executive (Bonn) powers are no longer effective. The OHR is now a non-democratic dispute resolution mechanism, and that dispute resolution role should now pass to Bosnia’s domestic institutions with the temporary and non-executive assistance of the EUSR. Careful, coordinated and determined action between the EU, UN, U.S., Russia and Bosnia’s neighbours is necessary to accomplish this.

Bosniak, Serb and Croat leaders agree in principle on some important reforms, though the Serbs want them to be minimal, Bosniaks want them to be extensive and Croats want them to protect their communal prerogatives. Ideally, Bosnia’s leaders should adopt the EU-U.S. proposal in its entirety: it is a good compromise – the most one can hope for under these conditions. If they cannot agree on all of it, however, the first priority should be reaching a deal to equip the state for EU integration, put it in compliance with the European Convention of Human Rights (ECHR), make it more functional and resolve the issue of state property. In later stages of the EU (and NATO) accession process, BiH will need greater administrative capacity, to implement and enforce EU legislation; but this can be added gradually, as the need arises and as Bosnian political will matures.

The U.S. and EU negotiators should be flexible and:

- indicate to all parties that there is no single, ideal package of reforms; this is only the first stage; but there are minimum reforms needed for EU and NATO candidacy, including giving the state the authority to negotiate accession commitments with the EU, bringing the constitution into compliance with human rights treaties, and modestly increasing the state’s capacity to govern; and

- not set constitutional reform as a condition for OHR closure.

If there is no deal, however, the PIC must choose. It could reinforce the OHR, by clearly supporting its continued mandate in Bosnia through 2010; backing the High Representative’s use of the Bonn powers; and reinforcing the EUFOR security mission with mobile gendarmerie units sufficient to enforce OHR decisions. It should then have a clear strategy on how to deal with recalcitrant RS. This approach is problematic and involves clear risks of escalation of tensions and paralysing stalemate if Serbs follow through on their threat to boycott state institutions.

A better option would be for the PIC to announce that the transition to a reinforced EUSR will start on 1 January 2010, instruct the High Representative to consult the parties and use his powers one last time to resolve the state property issue, thus meeting the conditions it set for OHR closure. At the same time, PIC member states should coordinate the following steps to reinforce the Bosnian state:

- the UN Security Council should renew the EUFOR and NATO mandates for at least one more year, noting their broad authority to enforce compliance with the DPA and provide a secure environment;

- the UN Security Council should welcome the EU’s willingness to take on new responsibilities in BiH, including serving as a guarantor of the DPA, through the deployment of a new EUSR;

- the EU should appoint a new EUSR with a strong mandate, including to offer advice and facilitation to Bosnia’s political actors; to find persons, parties or actions in violation of the DPA; and to make decisions on disbursement or restriction of EU’s financial aid to Bosnia;

- the EU should equip the EUSR with a strong team to facilitate Bosnia’s political process, negotiation between political actors and adoption of the EU’s acquis communautaire; the EUSR should more effectively consult with civil society to explain reforms and EU accession to citizens;

- the EU should invite Bosnia to apply for membership, upon adoption of minimal reforms; and

- the North Atlantic Council should spell out in December the conditions that BiH needs to fulfil to be offered a NATO Membership Action Plan.

Taken together, these steps would offer assurance that Bosnia will neither fracture nor stagnate and would match, or exceed, the OHR’s actual remaining capacity. Once they are in place, and after the Bosnians or the High Representative have resolved the state property dispute, the OHR can close. The most dangerous option of all, however, would be to take no decisions at all: if the PIC continues the OHR’s mandate past the early months of 2010 but does not substantially reinforce it, Bosnia will be faced with a confrontation between RS and the OHR from which no one will emerge undamaged and which could undermine the long-term operation of the Bosnian state.

Sarajevo/Brussels, 12 November 2009