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EU Policy and the Role of the OHR in Bosnia-Herzegovina: Resolving the Problem or Being Part of it?

Analysis

2014-02-05

By George Limantzakis

George Limantzakis is a PhD Candidate at the Faculty of History & Political Science at the Panteion University, Athens.

The Dayton Peace Agreement (1995) that put an end to the Bosnian War, inaugurated a complex institutional structure that remains inadequate and open to different interpretations. After four years of war, Bosnia-Herzegovina remained nominally a single country composed of two entities: the Serb Republic (Republika Srpska) and the Muslim-Croat Federation (Federacija BiH). The country’s new constitution attempted to prevent unilateral movements and secessionist policies by providing the communities with a series of veto powers. The  result has been an almost complete paralysis of the legislative and executive powers on the common state level, with the communities resorting to entity bodies and institutions. In order to help overcome such deadlocks, the agreement foresaw in its 10th Annex the creation of the Office of the High Representative (OHR), an institution that would oversee the implementation of the agreement and facilitate mutual understanding. In December 1997 the international community through the Peace Implementation Council agreed in Bonn to grant substantial powers to the High Representative, among which is “the power to remove from office public officials not complying with the Dayton Peace Agreement, and to impose laws which he considers necessary if Bosnia-Herzegovina’s legislative bodies fail to do so”.[i]

The Bonn powers, as they  are called ever since, were extensively used during the decade after the end of hostilities, causing significant reactions both inside and outside Bosnia.[ii] Some of the most controversial policies pursued by the OHR include the adoption of the “Defence reform” in April 2003, that suppressed the Supreme Defence Council of Republika Srpska and amended the respective Entity Constitutional Laws. Furthermore, the OHR dismissed a total of 139 officials until 2004, including judges, ministers, civil servants and elected members of parliament or ministers, sometimes along with freezing of their bank accounts. After the 2002 elections, the OHR also started scrutinizing all political candidates for major ministerial positions at Entity and State level. As expected, such acts caused considerable criticism as regards the role of the institution and its incentives, and have given ample arguments to nationalist politicians. The latter accused the OHR of misusing power and lacking accountability -as being only responsible to the Peace Implementation Council- and the international community of interfering in the country’s internal affairs.[iii] This has been particularly the case with Bosnian Serbs, who were reluctant to share a common state with the Bosnian Muslims in the first place and have been more vocal in demonstrating their opposition.

 In this context, the President of Republika Srpska, Milorad Dodik, asked the Bosnian Serb Assembly (Narodna Skupština) in October 2012 to discuss the abolition of Bosnia’s Army, arguing in favor of demilitarization. Only a few months earlier, the Assembly had tried to assume state powers by giving its authorities the right to take over property of the former Yugoslavia, an attempt that caused significant friction with the OHR. Valentin Inzko, acting as High Representative since 2009, expressed his concerns to the UN Secretary General, while the US’ State Department announced that the President’s statements referring to Republika Srpska as a state and to Bosnia-Herzegovina as a state union were inconsistent with the country’s constitution and the Dayton Agreement.[iv]

Dodik has repeatedly referred to the possibility of holding a referendum on independence in 2014 -citing Catalonia and Scotland as similar cases- should Republika Srpska and its authority continue to be disrespected by interventionist policies. Such a prospect would  open the “Pandora’s Box” in the region, as Croats have long been arguing in favor of a third entity (seen as the revival of wartime Herzeg-Bosna in a way), and many Bosnian Muslims claim Srebrenica and other cities of Eastern Bosnia should return under their control. Although re-examining the territorial status is a non-issue for international actors, Inzko considers the threat to be credible, and despite being reluctant to threaten he will use “Bonn powers” to remove Dodik, he has expressed his hope that the international community will not allow the referendum to take place.

Similarly, the Parliamentary Assembly of the Council of Europe (CoE) has voiced complaints against OHR actions and policies, requiring it to transfer powers to the Bosnian authorities as soon as possible and disengage from local politics. Under continuous pressure, the Peace Implementation Council was eventually forced in February 2008 to set some preliminary conditions for closure of the OHR. The most critical issues were therefore defined as objectives to be achieved by the Bosnian authorities before the OHR closes down. The most significant of these were the resolution of State Property, the completion of the Brčko Final Award,[v] fiscal sustainability of the State and the entrenchment of the Rule of Law, although the latter two are defined in a quite vague manner.

The declared aim of the EU and the High Representative has now become to limit the role and the pressure of third parties, in order to facilitate reaching a consensus that could lead to a viable solution for all three communities. However, this is not going to be an easy taskgiven that local politics continue to be largely influenced by nationalists, most of which react instinctively and often intensely towards any kind of reform and compromise. In view of that situation, many international institutions claim they would have already left the country if there was no fear of destabilization and a new round of interethnic conflict. Yet, since conditions are not mature for such a transition, nobody would be comfortable with the risk of pushing the country back into chaos and be held accountable for it.

This argumentation is quite problematic -if not ironic and insincere, as the international community has been in control of the country’s affairs for almost twenty years, without actually managing -or even caring, perhaps- to provide or assist the creation of the necessary ground for such a transition. Therefore, as often happens in politics, there have been more words than action in part of the EU and the other international actors vis-à-vis Bosnia until now, as the country has effectively and conveniently been run as a joint protectorate with no prospect of actual independence.

However, in light of the new developments and shifts of balance in the Western Balkans, such as the accession of Croatia in July 2013 and the beginning of accession negotiations with Serbia just a few weeks ago (21.1.2014), things seem to be changing and the prospect of eventual accession to the EU might encourage further steps to that end. In this context, two new conditions were set with regard to closing down the OHR, one of which was signing the Stabilization and Association Agreement (SAA), met on 16 June 2008, and the second was reforming the constitution to comply with the ECHR decision of December 2009 with regard to extending full civic rights to citizens not belonging to one of the three major communities (which is yet to be met).

Although priorities have been constructively reset towards establishing a truly sovereign and independent Bosnian state, it is evident that still a lot remain to be done. The size and complexity of institutions is definitely an issue to be addressed within the forthcoming years, as sustaining 13 governments (10 cantonal, 1 for the Federation, one for RS and one for the common state) and 187 ministries is not viable for a country with a population of 3.8 million.[vi] The country’s fiscal problems should also be tackled soon in a consistent and coherent manner, since the prospect of default has been continuously postponed during the last years but not truly avoided yet. Consequently, international support will remain necessary during the extended transition period Bosnia is going through, but international actors should constrain themselves to a secondary role, letting the country’s own peoples and institutions do the hard work.Viable solutions to the problems of Bosnia cannot be imposed or dictated, and they will be conceived as such only if they are the result of true negotiations among the interested parties. To that end, the closure of the OHR is rightfully considered by the Steering Board of the Peace Implementation Council to be a pre-condition for EU membership and even candidate status, although this prospect does not seem plausible within the next years.

[i] An interesting paper recently published with regards to actual self-government and the sovereignty of Bosnia is by G. Veneri, Modelling states from Brussels? A Critical Assesment of the EU-Driven Statebuilding of Bosnia and Herzegovina, Dec 2007.

[ii] One should note that up to 2013, all deputies serving as High Representatives have been from the United States. Since then and up to date, all High Representatives are from European countries (namely Sweden, Spain, Austria, the UK, Germany and Slovakia).

[iii] Many have also noted as a major shortcoming of the OHR, the lack of appeal for its decisions, which are not bound on a preliminary hearing of the concerned persons, on which they have however immediate effect, and even so since in cases of removals that include a life-ban on public offices.

[iv] Dodik later explained in an interview to Al Jazeera (6.1.2013) that he is very careful with the terminology he uses, commenting that “according to american logic, the state of Texas is a state. The same applies to Bavaria, in Germany, for example, and many other states”. In this context, he agreed Republika Srpska isn’t and shouldn’t be considered yet an independent fully sovereign state, but it “certainly does have state authorities”.

[v]The parties to the Dayton Peace negotiations established the inter-entity boundary line throughout Bosnia-Herzegovina, but failed to agree on the allocation of the Brčko area. Pending a final decision, the parties created an “Arbitral Tribunal for Dispute over Inter-Entity-Boundary in the Brčko Area”, whose Final Award (1999) established the Brčko District as a multi-ethnic, democratic unit of local self-governance. In 2007, the Tribunal called the Entities to abide by the provision that they have no powers over the District and that they cannot interfere to its affairs. Although the Entities have fully complied and even facilitated the establishment of the District institutions, implementation of the Brčko Final Award requirements is yet to be considered fulfilled, remaining one of the conditions set by the Peace Implementation Council for ending the mandate of the OHR in Bosnia.

[vi] That also implies the existence of an overgrown but barely functional public sector, which is hard to cut down due to interethnic tensions and micro-politics. Reducing public servants by 10% within the next decade is a set target that seems feasible, but up to now there has been no political will to go ahead. Interview with JasnaJelašić, OfficeoftheEUHighRepresentativeinBiH,Sarajevo, 26.6.2009.

© Inter Alia 2013