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ICG gets it wrong

Another of my Balkans friends has sent me a long missive about a recent ICG letter to the EU’s Political and Security Committee.  Happily, I am told the letter did not have the desired effect, as the committee was deeply unsympathetic with the views put forward.  As always, comments are welcome, so long as they address the issues and avoid personal invective:

On 2 May International Crisis Group (ICG) President Louis Arbour sent a three page letter to the ambassadors of the European Union’s Political and Security Committee in advance of their May 3 meeting. The letter contained ICG’s version of events in Bosnia and Herzegovina, as well as policy recommendations.

The ICG letter contains a number of factually inaccurate claims. These claims not only paint a false picture of events on the ground, but are also used as the basis for subsequent recommendations. Here are some of the blatant inaccuracies in the text:

• The letter claims that the Republika Srspska (RS) referendum “does not purport to have legal effect”. This statement is factually incorrect: the RS Law on Referendum and Citizens’ Initiative clearly states that referendum results are legally binding. The referendum decision adopted by the RS National Assembly is a legally binding act and it entered into force upon publication in the RS Official Gazette.
• “The government of the…Federation was formed illegally”. This statement has no legal basis under BiH domestic law or international law. This contradicts not only Bosnia’s domestic legal framework, but also the views of the OHR and the wider international community. The Ambassadors of the Peace Implementation Council’s Steering Board (Canada, EU Delegation, France, Germany, Italy, Japan, Russia, Spain, Turkey, UK and US) along with OHR and other representatives of the international community (UNHCR, EUFOR, EUPM, OSCE, NATO) consider the current Federation government legitimate.
• The letter implies that the RS referendum decision was triggered by the High Representative’s decision of March 27. This claim has no basis in fact, as these actions were clearly part of a longstanding RS policy to push for state dissolution and is in no way linked with the High Representative’s intervention in the Federation. The RS passed similar conclusions in May 2009, which the High Representative was forced to annul at that time. The RS’ intention to hold a referendum was announced long before the High Representative’s March 27 Decision, as both the RS Government and RS National Assembly passed official acts on this matter in December 2009. To link the March 27 Decision and RS referendum implies a non-existent causality.
• The letter claims that the High Representative’s March 27 Decision suspending a decision of the Central Election Commission (CEC) annulling the “formation of the FBiH (Federation) government” and “the consequent interference with the right to appeal that ruling, have undermined state bodies and the rule of law”. In fact, the CEC never annulled the formation of the FBiH government and the High Representative’s Decision left open the door to authorized officials to challenge and clarify the constitutionality of the formation of the FBiH government before the FBiH Constitutional Court. Croat parties did submit several appeals to the FBiH Constitutional Court, but then inexplicably withdrew their appeals before the Court issued a ruling. Domestic legal remedies still do exist for aggrieved parties in this matter, and the High Representative’s Decision in no way circumscribed the use or application of these remedies.

Unfortunately, the ICG letter follows the ideological path of several recent ICG Bosnia reports, in that it resorts to false claims and factually inaccurate information to push a policy line that repeats nearly verbatim the official propaganda emanating from Republika Srpska. The letter could have been written in Banja Luka.  This ICG line – which has consistently parroted RS policy since early 2009 – is causing tremendous damage to BiH at a time when the country can ill afford it.

Perhaps an even more significant problem than the things that ICG writes, are the things it omits. None of the ICG reports of the last two and a half years has mentioned Milorad Dodik’s high profile push towards state dissolution, nor have they attempted to analyze his motives for obstructing and dismantling state institutions. They have failed to discuss the tendentious, provocative and highly combative nature of statements by RS officials. ICG gives scant shrift to RS’ constant denials of genocide, even though the ICTY and ICJ confirmed that genocide had occurred in several rulings. ICG fails to mention that RS is disputing the Final Award of the Brcko Arbitral Tribunal and has attempted to dismantle state institutions mandated by the Dayton agreement. ICG doesn’t mention the state capture of media inside the RS or the RS government’s heavy-handed bullying tactics against opposition figures and missing persons groups. ICG also fails to mention that the current media atmosphere inside RS is similar in tone to the wartime years, a sharp contrast to the Federation media.

RS media gave unusually prominent positive coverage to the ICG letter, as they have to all ICG reports published recently.  At a time when Bosnia is headed on a downward trajectory, ICG’s work is playing an active role in undermining relations within the country, while sowing dissent within the international community.

You reap what was sown

A reader tweets:

Personally I prefer Bosnia to stay one single state. But how can we say YES to #Kosovo but NO to #RS and Croats in Bosnia!?

This in my view is an important and legitimate question, one that merits more of an answer than I am able to fit into 140 characters.  A Serb colleague has been asking me this question for many years.  So here goes.

The Bosnia and Kosovo outcomes are different because of the different history and evolution of the two places. I am not talking ancient history here, but recent events. And Belgrade played a critical decisionmaking role in these events. I’d even say it was Belgrade that determined the two different outcomes.

In Bosnia-Herzegovina, Belgrade supported the effort of Republika Srpska (RS) to secede by force of arms, starting in 1992 by ethnically cleansing the territory the RS controlled. The leadership and other officers of the Bosnian Serb Army (VRS) were in fact officers of the then-Yugoslav National Army (JNA). This effort failed in 1995, when an attack on Sarajevo precipitated NATO bombing that tilted the military situation in favor of the Federation (mainly Croat and Bosniak) forces. The Dayton ceasefire that ensued and the Dayton agreements saved the VRS from imminent defeat and gave to Republika Srpska 49 per cent of the territory, in exchange for its remaining inside Bosnia as one of two “entities” (the other being the Federation). Thus Slobodan Milosevic at Dayton snatched a kind of victory from the jaws of defeat, since he would have been blamed had the Federation forces taken Banja Luka and Brcko. But he signed away any right the RS might claim to secession and independence.

What about the Croats? They did not ask for or get a separate entity at Dayton. This I know since I conducted, with Michael Steiner, the Federation negotiations that took place in the first ten days there. Why? Because the Bosnian Croats were getting an excellent deal: half the Federation, when they were far less than half its population, and one-third of the state of Bosnia and Herzegovina, when they likely weren’t at the time of Dayton more than 10 per cent of its population.  Tudjman was also concerned to prevent the emergence of an Islamic Republic in central Bosnia, which the Federation did by tying the Bosniaks to a governing structure they shared with the Croats.

In Kosovo, Belgrade tried to prevent the Kosovo Liberation Army (KLA) from gaining independence from Serbia by force of arms, using ethnic cleansing to try to redress the population balance in a province of Serbia that had become heavily Albanian. This effort also ended with a NATO bombing campaign, which in turn ended with a UN Security Council resolution in which Milosevic again snatched a kind of victory from the jaws of defeat, as it put Kosovo under UN administration and appeared to require a new UN resolution to change that outcome. It looked as if Kosovo would, like RS, not be able to secede and declare independence.

So the initial outcomes in the two places were about as favorable to Serbia’s interests as possible under the particular circumstances, which included two failed military campaigns and extensive ethnic cleansing as well as NATO intervention. Milosevic, contrary to what many may think, proved much better at diplomacy than fighting. But post-war developments diverged in the two places.

Kosovo, guided by the UN, U.S. and EU, implemented extensive provisions to protect Serbs and other minorities (standards before status, then the Ahtisaari Plan) and decided to declare independence in February 2008. Seventy-six states have now recognized its sovereignty, and the International Court of Justice (ICJ) has advised–in response to Belgrade’s request–that the declaration of independence did not violate international law.

Of course RS could also declare independence. But Belgrade at Dayton signed away its right to do so (and RS leaders had authorized Milosevic to speak for them at the negotiation). Any case at the ICJ would likely be decided differently for the RS than for Kosovo. And it is unlikely in any event that under current circumstances RS would get any significant recognition. It has done little to welcome back its Croat or Bosniak populations, and its secession would likely lead to a result that no one in the international community (including Serbia and Croatia) wants: the creation of a non-viable Islamic state in central Bosnia with irredentist ambitions.

Note:  I have not above used the legal arguments about whether Kosovo was a “federal” unit of former Yugoslavia or not.  Bosnia certainly was a federal unit with the right to independence and declared it in 1992 in accordance with the Badinter criteria, which included a referendum that passed by a wide margin, with many Serbs boycotting.  RS was certainly not a federal unit of the former Yugoslavia, so according to the Badinter criteria it did not have the right to secession.  Kosovo is arguable both ways.  So I’ve chosen not to argue at all.

Note some more:  The Badinter Commission was asked:

Does the Serbian population in Croatia and Bosnia-Herzegovina, as one of the constituent peoples of Yugoslavia, have the right to self-determination?

Its answer, in typically oblique Europeanese, was this:

(i) that the Serbian population in Bosnia-Herzegovina and Croatia is entitled to all the rights concerned to minorities and ethnic groups under international law and under the provisions of the draft Convention of the Conference on Yugoslavia of 4 November 1991, to which the Republics of Bosnia-Herzegovina and Croatia have undertaken to give effect; and
(ii) that the Republics must afford the members of those minorities and ethnic groups all the human rights and fundamental freedoms recognized in international law, including, where appropriate, the right to choose their nationality.

In American, that would be “no,” but the Serb community’s minority rights have to be respected.

Bottom line:  Kosovo is independent because of what Belgrade tried to do there; RS will not be independent because of what it and Belgrade did in Bosnia and at Dayton.

That’s why the outcomes in Kosovo and Bosnia are different: because their evolution and circumstances, largely determined by decisions made in Belgrade, are different.  None of this was done by the people who are today in power in Belgrade, but you reap what was sown.

The countdown to referendum begins

Another of my Bosnia-watching friends (I’ve got many) offers the following:

On April 13^th, RS President Milorad Dodik asked a special session of the RS National Assembly to hold a referendum on allegedly imposed laws and alleged human rights violations committed by the High Representatives. Dodik’s 50 minute speech to the Republika Srpska National Assembly (RSNA) – both in tone and content – sounded troublingly similar to speeches given by ultra-nationalist politicians immediately prior to the outbreak of the war in Bosnia and Herzegovina in 1992. The speech’s first paragraph mentioned chopped-off heads, concentration camps, mujahedeen, jihad, Al Qaeda and global terrorism. During the course of the speech, Dodik mentioned crossing the Rubicon three times. In this regard, the speech represented a political Rubicon for Dodik, in that he left himself no way to back down from this position. Later that same evening, the RSNA adopted conclusions that included a referendum measure.

Five additional conclusions proposed by other political parties were adopted. One conclusion said that the RSNA requests the RS Government, RS bodies and institutions to accept RS Supreme Court decisions as final in cases in which they are one of the parties. This is a de facto repudiation of the authority of the BiH Constitutional Court, an Annex 4 Dayton institution. In other conclusions, the RSNA deemed the High Representative’s suspension of the Central Election Commission ruling illegal and that therefore, the Federation government authorities are illegal, i.e. Republika Srpska will not recognize Federation authorities. It also voted to create a fund to support the families of war crimes’ indictees.

The referendum question the RSNA adopted is: “Do you support the laws imposed by the High Representative of the International Community in BiH, especially those pertaining to the Court of BiH and BiH Prosecutor’s Office, as well as their unconstitutional verification in the BiH Parliamentary Assembly”? As the reader may notice, the tendentious manner in which the referendum question is written tells the voter how to answer. The date of the referendum is in the first week following 45 days from the day that the decision takes effect, which is one day after publication in the RS Official Gazette. This could be delayed by weeks or even months, depending on whether the Bosniak Caucus in the RS Council of Peoples invokes the Vital National Interest provision and refers the matter to the RS Constitutional Court.

The referendum question relates to the State Judges and Prosecutors, as well as the High Judicial and Prosecutorial Council, all institutions that the international community went to great effort and expense to create. Among other things, these institutions are crucial to the ICTY war crimes strategy and international efforts to help the countries in the Western Balkans process war crimes cases in an effective manner. Two days after his speech, Dodik went on RTRS and outlined what he intended to do after the referendum: “After the people have voted in the RS, we will ask the National Assembly to reconvene to adopt new laws that will repeal all the anti-Dayton and unconstitutional decisions and laws which have been imposed by the High Representative”. This means Dodik clearly intends to undo everything that has been built up since 1996.

The special session was entitled A Discussion on the Consequences of the Anti-DPA and Unconstitutional Establishment of Judiciary at BiH Level and (Non)-Activity of the BiH Prosecutor’s Office and the Court of BiH in War Crimes. The first 23 conclusions accused the BiH Court and Prosecutor of selectivity in their work at the expense of Serbs and of generating ethnic hatred; challenged the retroactive application of the BiH Criminal Code to war crimes; argued that Republika Srpska did not agree to the transfer of competencies establishing the BiH Court and Prosecutor; rejected the authority of the BiH Parliament to adopt legislation on matters for the signatories of the Dayton Peace Agreement; rejected the authority of the High Representative to impose legislation outside the competencies of the Presidency and Council of Ministers; and demand that the High Judicial and Prosecutorial Council be established at the entity level and the judicial and prosecutorial aspects be separated. Dodik called the special session on 31 March, after presenting a 61-page document relating primarily to the work of institutions involved in the search for the missing and prosecuting war crimes. In the intervening period, media close to the RS Government supported Dodik and reported extensively the document’s distorted accusations as fact. Dodik also sought – and received – the backing of the RS Senate, an appointed consultative body – for his initiative at a 12 April session.

PS:   Today the Hague Tribunal convicted two Croatian generals of crimes against Serbs in 1995, once again giving the lie to Dodik’s frequent complaints that the Tribunal is biased against Serbs.  Don’t expect Dodik to take notice.

Damage limitation won’t work, so fix it

Here is the final installment of a several day exchange on Bosnia issues, in which Kurt Bassuener responds again to Matthew Parish (to get the full exchange on peacefare.net, just click on the “Balkans” category over on the right:

Most of Matthew Parish’s response questions the very idea of enforceable peace implementation and then goes to posit the myriad flaws he sees with its execution over the past 15 years.  The underlying argument that the European Stability Initiative has long been making, now with the International Crisis Group in tow: if the international actors – particularly the OHR – got out of the way, Bosnian politicians would find their own equilibrium, and Bosnia would self-propel into the Euro-Atlantic mainstream.

This is no longer a theoretical exercise, since it’s effectively been tested since 2006. It has failed.  Nobody can credibly claim that a tyrannical OHR has stomped like Godzilla over domestic political actors crippling their ability to be responsible since then.  If that ever were the case – and this is myth, in my view – it certainly isn’t now.

What’s since become clear is the incentives in the Dayton system make the default setting, absent external guardrails, a drift toward partition.  On that Mr. Parish and I agree.   I am just far more convinced than he that this will lead to major violence if left unchecked.

Yet I posit that the international community’s failing wasn’t that it went too far. Rather, it’s that it didn’t go far enough toward changing the incentive structure.  This is a constitutional and structural problem.  The problem isn’t that political actors are “immature” – they operate rationally within a system designed to cater to their needs as warlords and signatories to a peace agreement, not designed to promote democratic accountability.  So they inhabit a happy hunting ground of unaccountability unrivalled in Europe; no “carrots” are more appealing than the perquisites of power they already have.

The prevailing idea of the two High Representatives who actively engaged in state-building (albeit with different styles), Wolfgang Petritsch and Paddy Ashdown, can be summed up as “if you build it, they will come.”  The country’s politicians were encouraged, and in some cases compelled, to create the institutions and mechanisms to enable the country to move toward the EU and NATO. It was assumed that “the pull of Brussels” would be strong enough for the political leaders who resisted or unenthusiastically accepted these to ultimately embrace them for the greater good.

If they actually cared for the popular good, that would be the case.  But they have little incentive to, able to turn to the political comfort food of patronage and fear to get them through repeated election cycles despite popular frustration at their protracted lack of delivery.  While there is undeniably a background level of nationalism in Bosnia – there is in every country  – it is impossible to get a baseline reading, since the system acts as an amplifier.

I’m actually quite confident that a modus vivendi could be found among BiH’s citizens, if the country’s politicians were disarmed by taking their ability to leverage fear away.   But the international community always hamstrung itself on this, the biggest value added it could have, by constantly telegraphing its lack of staying power.

But so much for our respective opinions on how we got here.  As I wrote in my original reply to Matthew Parish’s article in Balkan Insight (which launched this exchange), his proposal is for international management of state dissolution, which is what I assume he means by “damage limitation.”

Practically speaking, that’s just not feasible, for the reasons I wrote about in my article.  The split would not – and cannot – be consensual between the entities. It would engender violent resistance. The correlation of forces that prevailed in the war does not hold now – the RS is in a much weaker position.  Any attempt to create a third entity in the Federation would also be fraught.  The idea that an international community that doesn’t have the stamina to keep the EUFOR mission of 2000 troops fully staffed (it’s at about 1500 now) would summon the fortitude to contend with the inherent dangers of managing partition – which would mean overseeing ethnic re-cleansing of numerous locales – beggars belief.

What is so dangerous about what Mr. Parish counsels is that the likely impact that promoting the idea of inevitability of state failure will find willing ears in the EU and beyond, since it is the bureaucratic path of least resistance.  That is clearly the intent.  There is already pronounced desire on the part of most continental European PIC members (Germany, France, Italy and the EU institutions), plus Russia to dispense with the executive mandates of the High Representative, a Chapter 7-mandated EUFOR, and a Brcko Supervisor.  For Russia, the incentive is clear.  For the EU, it seems simply driven by bureaucratic inertia, wishful thinking, and actuarial policymaking.  This is myopia bordering on blindness, since it would be left to deal with the results without any ability to respond – at least not with “soft power” or with the imprimatur of the UN Security Council.  With these mandates, there is a legal platform to at least react, given the  bathetic lack of will to deter (which would be far more effective).  The prevailing policy direction in the EU is to irreversibly limit its own options.

Those who have counted on the international community to preserve the state’s integrity will draw the logical conclusion that they will have to do this themselves.  Some already have made this deduction.  I don’t think this is the kind of “ownership” the EU has in mind…