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Report 31 / Europe & Central Asia

Brcko: What Bosnia Could Be

The fate of the Brcko area, whether it should be in the Federation or Republika Srpska, was considered too contentious to be resolved in the Dayton Peace Agreement (DPA) and was left to binding arbitration.

Executive Summary

The fate of the Brcko area, whether it should be in the Federation or Republika Srpska, was considered too contentious to be resolved in the Dayton Peace Agreement (DPA) and was left to binding arbitration.  The Arbitral Tribunal announced an interim decision on 14 February 1997: the Tribunal retained jurisdiction on the matter for another year; maintained the territorial status quo leaving the Inter-Entity Boundary Line (IEBL) which divides the pre-war municipality; enumerated obligations for the parties to fulfil, including the return and reintegration of displaced person and the establishment of a multi-ethnic administration in part of the municipality held by Republika Srpska; provided for the establishment of the office of an International Supervisor to oversee the implementation of those obligations; and conditioned the final outcome of the arbitration on the conduct of the parties during the year.  The Tribunal is scheduled to give a final ruling by 15 March this year

In the year since the interim decision, the Republika Srpska authorities obstructed almost all measures promulgated by the Supervisor.  Federation authorities also failed to fulfil part of their obligations.  Despite these challenges, the Supervisor implemented plans for returns and reintegration of displaced persons, reconstruction and economic revitalisation, and the establishment of a multi-ethnic administration, with mixed results.

The long-delayed final Award could have serious consequences, but it must be announced by 15 March.  If the decision is postponed again, the fate of Brcko will remain in limbo, hampering both returns and the reintegration of displaced persons, as well as the economic revitalisation of the municipality.

Awarding Brcko town and surrounding areas to the exclusive jurisdiction of the Federation cannot be supported fully.  While such an outcome has some basis on legal and equitable grounds, it will not be conducive to long-term stability and peace.  The Federation has also failed to fully fulfil its obligations, in particular by failing to create conditions necessary for displaced Serbs to return to Sarajevo.  More importantly, the outcome urged by the Federation will split Republika Srpska in two.

The outcome urged by Republika Srpska -- maintaining the status quo as a final solution -- cannot be supported on any of the grounds enunciated by the Tribunal.  Such an outcome will neither ultimately achieve an “equitable result” nor will it “ease the regional tensions that have given rise to this dispute”, goals sought by the Tribunal.  On the contrary, it will be a trophy awarded to ultra-nationalists for crimes against humanity committed during the war and, since then, for total obstruction of the DPA as well as the provisions of the interim Award.

The commitment to the DPA by recently elected Prime Minister of Republika Srpska Milorad Dodik is welcome and significant, but of itself it does not change the terms of the interim Award -- the determining factor for the final decision is the conduct of the parties during the past year.

The International Crisis Group (ICG) proposes an alternative, which avoids creating “winners” and “losers”, or strengthening hard-liners in both entities.  ICG hopes its proposal can serve as a starting point for the parties themselves to develop a common position that would be submitted to the Arbitral Tribunal before 15 March.  The proposal is the following:

  • The entire pre-war municipality, including both Republika Srpska-held Brcko town and surrounding areas as well as territory under Federation control, should be placed under the shared jurisdiction of the two entities.  Thus the two entities would overlap in Brcko.  At the same time, a new municipal council, to be elected according to a new system, should have broad administration powers in order to minimise interference by the two entities or the Tuzla Canton.
     
  • In order for the three communities in the municipality to develop the necessary confidence to reintegrate, limited autonomy rights could be provided for the preservation and development of their respective cultural, educational and religious rights.
     
  • The Arbitral Tribunal should relinquish its jurisdiction on the dispute after the final award is published.  The Supervisor’s mandate should be extended for two years and strengthened so that the retention of jurisdiction to adjust the award based on the conduct of the parties to the dispute will no longer be necessary.  Moreover, the award should include general principles for the constitution of the shared municipality as detailed in the report.
     
  • Except for NATO-led forces, the Brcko municipality should be a completely demilitarised zone.  The Arbitral Award should provide additional powers to the International Police Task Force, especially the right to remove from office local police officers found in dereliction of their duties.

While complex, this proposal has the advantage of setting precedents for co-operation between the entities.  However, the way in which the Arbitral Award is presented is crucial.  The Tribunal must explain to the people of the Federation that it is not in their best interest to split Republika Srpska in two, leaving municipalities east of Brcko to the stranglehold of hard-liners in Pale.  To the people of Republika Srpska, the Tribunal must explain that, during the past year, their hard-line leaders in Pale failed to implement the provisions of the Arbitral Award, and that the shared responsibility for the entire Brcko municipality is a reprieve for their new moderate Prime Minister.

Sarajevo, 10 February 1998

Report 232 / Europe & Central Asia

Bosnia’s Future

While the physical scars of the 1992-1995 Bosnia war have healed, political agony and ethnic tension persist. Real peace requires a new constitution and bottom-up political change.

Executive Summary

Bosnia and Herzegovina (BiH, or Bosnia) poses little risk of deadly conflict, but after billions of dollars in foreign aid and intrusive international administration and despite a supportive European neighbourhood, it is slowly spiralling toward disintegration. Its three communities’ conflicting goals and interests are a permanent source of crisis, exacerbated by a constitution that meets no group’s needs. The political elite enjoys mastery over all government levels and much of the economy, with no practical way for voters to dislodge it. The European Union (EU) imposes tasks BiH cannot fulfil. A countrywide popular uprising torched government buildings and demanded urgent reforms in February 2014, but possible solutions are not politically feasible; those that might be politically feasible seem unlikely to work. Bosnia’s leaders, with international support, must begin an urgent search for a new constitutional foundation.

The international project to rebuild Bosnia has had success: war’s physical scars are largely gone, and the country is peaceful. The political agonies, however, show the intervention’s limits. Years of well-intentioned reforms, imposed or urged, have left a governing structure leaders circumvent, ignore or despise. May’s floods left scores dead and thousands homeless, exposing the price of poor governance. With growing frequency, Bosnians ask the questions that preceded the 1992-1995 war: shall it be one country, two, or even three; if one country, shall it have one, two or three constituent entities, and how shall it be governed?

The heart of the problem is in Annex 4 to the Dayton Peace Agreement, known as the constitution (and in several changes imposed by courts and international officials). It defines BiH as a state of two entities, in effect but not explicitly federal, but also the state of three constituent peoples (Bosniaks, Croats, Serbs), and yet, simultaneously, of all citizens. A suffocating layer of ethnic quotas has been added, providing sinecures for officials increasingly remote from the communities they represent. The tensions created by constitutional schizophrenia are pushing BiH to the breaking point. A new design is needed: a normal federation, territorially defined, without a special role for constituent peoples, but responsive to the interests of its three communities and the rights of all citizens.

The state administration’s need to reform is made acute by a 2009 decision of the European Court of Human Rights (ECtHR) that in effect requires BiH to change the ethnicity-based way it chooses its chief executive and part of its legislature. Existing proposals try to squeeze the constituent peoples into an ostensibly ethnicity-blind structure on top of which a complicated network of indirect elections would allow party leaders to choose the executive with as little democratic input as possible. The EU and the outside world support this tinkering with Dayton to satisfy the decision, though such proposals have manifestly failed. Bosnians need to rebuild their political structure from the bottom up.

There is no consensus on where to start, but Bosnia may have to break from its political system based on constituent peoples and their rights. Crisis Group has not reached this conclusion lightly. It reflects long experience and observation that no one has been able to frame a broadly attractive vision on the existing flawed basis. With stresses and frustrations accumulating in all communities, Bosnia must conceive new foundations to survive. Agreement may take years and much experimentation and debate, but the search should begin.

BiH is home to three political communities: those primarily loyal to the Bosnian state, usually but not always Bosniaks; those loyal to Republika Srpska (RS), usually Serbs; and those desirous of Croat self-government, usually Croats. Giving the Croats what they want, their own entity to make a three-entity Bosnia, is absolutely rejected by Bosniaks. Building virtual representative units for the three communities, possibly with new emphasis on municipalities as basic building blocks, is intellectually plausible but requires a leap of faith few seem ready to take. A purely civic state is inconceivable to Serbs and Croats.

Neither leaders nor civil society have deeply explored alternatives to three constituent peoples in two entities; any consensus would take time. Nevertheless, the goal should be clear. The head of state should reflect Bosnia’s diversity, something a collective does better than an individual. The same body could be the executive government. Some decisions should require consensus, others a majority. All three communities should be represented, not necessarily in equal numbers. There should be no ethnic quotas; representation should reflect self-defined regions and all their voters. Poorly performing, unnecessary state agencies and ministries should be slimmed or abolished, with powers reverting to the entities; but the state would need new ministries and agencies required for EU membership. The ten cantons in the larger of BiH’s two entities, the Federation (FBiH), are an underperforming, superfluous layer. They could be abolished, their powers divided between the municipalities and the entity government.

Political culture is part of the problem; an informal “Sextet” of party leaders in effect controls government and much of the economy. A multi-ethnic coalition persists, election to election, with only minor adjustments. Membership is earned by winning opaque intra-party competitions in which voters have little say. Change in this system can only come from within: Bosnians should join parties and participate in genuine leadership contests. Sextet power is further buttressed by control of hiring, investment and commercial decisions at state-owned firms, a situation that chokes private investment and growth.

Bosnia is unimaginable without the work of international officials who did much to shape political institutions and implement peace, but the international community has become more obstacle than help. BiH is trapped in a cycle of poorly thought-out, internationally-imposed tasks designed to show leaders’ readiness to take responsibility but that put that moment forever out of reach. The only way to encourage leaders to take responsibility is to treat the country normally, without extraneous tests or High Representatives. The EU could signal a new start by stating it will receive a membership application – the first of many steps on the long accession road. It should then be an engaged, not over-didactic partner in Bosnia’s search for a way to disentangle the constitutional knot.