Bosnia: Crisis Averted – For Now

Bosnia’s latest crisis has been averted – for now. The European Union secured the agreement of Bosnian Serb leader Milorad Dodik to cancel a referendum on the state judiciary and on laws imposed by past international High Representatives. In return, Brussels has promised to open a structured dialogue in Banja Luka which will eventually provide a comprehensive overview of the country’s judiciary. The High Representative (HR) did not have to act on his threat to annul the referendum decision, which would have increased tensions if the Republika Srpska (RS) had defied it.

But who really won? The deal is hard to fit into Bosnia’s political narrative, and politicians and journalists alike struggled with the spin. Sarajevo’s Oslobodjenje featured a headline on “Dodik’s greatest defeat” while its editorial accused the EU of “Saving private Dodik”. Banja Luka’s pro-Dodik daily Glas Srpske celebrated “Milorad Dodik’s Great Victory” and quoted Serbian President Tadic as saying that “RS’s interests have been defended.

The truth is, there are two clear winners: Bosnia and the EU. Bosnia averted a breakup of its institutions. EU foreign policy chief Catherine Ashton and the EU’s nascent External Action Service’s scored their first real victory.

Still, it is too early to relax. The deal could easily unravel, and this won’t be the last such crisis. Dodik may well feel he took RS and Bosnia to the brink of a real catastrophe and won – and he and others may be tempted to repeat the exercise. But the RS cannot afford to repeat this kind of referendum and should not use such an inflammatory device at all.The international community and Bosnia’s leaders must learn from the mistakes that created this mess and the steps that led out of it.

Republika Srpska (RS) has been threatening a referendum for a long time to rid Bosnia of the Office of the High Representative (OHR). In 2009 the threats became reality  when the RS issued conclusions criticising the transfer of competences from the RS to the Bosnian state and announced its rejection of OHR’s authority. In 2011 the RS challenged the HR on a judicial issue – prosecution of war crimes against Serb victims, technical complaints about procedure and state-level prosecution of entity crimes – but Serbs have other grievances, and can use those too. Threat of another referendum may be around the corner.

It is telling that no local leaders challenged the RS referendum in either the RS or Bosnian constitutional courts, preferring instead to leave the battle to OHR. Worse, the OHR has become embroiled in defending its own prerogatives, even at the expense of state stability. But the High Representative’s duty is not self-defense; he should ignore challenges to his authority as irrelevant. Banja Luka’s assaults on OHR cannot change international law which confirmed the HR’s authority at the United Nations Security Council or BiH state-level law.

As a matter of international law the Serbs are wrong. As a matter of politics and good sense, however, they have a point. It’s hard to enforce international edicts without military backup. International powers that made sense in the post-war emergency command less support in today’s Bosnia. By stepping in too soon, the Office weakens the state institutions it is charged with strengthening. Bosnia’s state bodies must be allowed to take the burden of dealing with crisis.

A first lesson from the recent crisis is that while the HR should warn local officials before they take actions that might threaten Dayton, he should only step in and annul decisions when there is a true emergency. Firstly, Bosnia’s state bodies – its election commission, parliament, presidency and courts – must be allowed to take the burden of dealing with crisis. All agree that OHR’s role is temporary and BiH will one day have to function without it. Better its institutions do so now, with a safety net. The Constitutional Court should be Dayton’s main interpreter and enforcer, with OHR stepping in to support it.   Like muscles, state institutions will get stronger with use and atrophy with disuse. As in this instance, the EU may also have solutions to offer.

Secondly if local institutions are going to help resolve conflict, Bosnians should accept to play by the same rules — as defined by Annex 4 of the 1995 Dayton Peace Agreement. RS must accept the authority of Bosnia and Herzgovina’s Constitutional Court, Sarajevo must accept that the constitution makes it easy for a few politicians to hold up agreement for months or more and that the OHR cannot legitimately break deadlocks. And RS must accept that whatever its views of the Bonn powers, OHR’s interventions are now part of Bosnia’s constitutional fabric and cannot be undone unilaterally.

But certain red lines exist in this game and must be enforced. Gross violations of the constitution — setting up authorities independent of it or rejecting the authority of the BiH parliament, presidency, courts, or investigations agency; nullifying state law; or of course, secession — are all over the line. Challenging state-building reforms or the OHR’s authority, boycotting the legislature or government, holding a (proper) referendum or indulging in anti-state rhetoric may be unwise, provocative, and damaging, but these steps are not out of bounds.

Thirdly the OHR and EU can cooperate in crisis management. The OHR cannot mediate in clashes in which it is one of the parties, as in this one with RS. Then a third party is needed to facilitate, as the EU did this time. This is a good first step. There should be others where the EU integration process provides an opportune context for debating Bosnia’s controversial issues. But the EU will need to be extremely vigilant to remain a neutral broker — its’ advice and guidance based on the European body of law or the acquis – and not allow itself to be also pulled into local politics.

Now that the EU will provide guidance on judicial reform, we can expect fresh challenges to state competences. But they should not come only from the RS but from all other political and administrative bodies interested in improving functionality of Bosnia’s state, entity and local administration. This should not be an all or nothing game – to challenge one state body is not to challenge them all. In fact the very speeding up of the EU accession process will bring about a period where the fate of many state bodies and competencies should be decided, some to remain and grow, others to lapse, and some new ones to be created. As long as everyone agrees that Bosnia’s integrity cannot be violated, all parties can work together to form a state that better meets their interests and EU criteria.