peacefare.net

Wrong, wrong, wrong, wrong

I am reluctant to turn www.peacefare.net into a boxing ring, with International Crisis Group (ICG) in one corner and an anonymous Bosnia-watcher in the other.  But ICG is influential in the Balkans and has in the past published a great deal of fine analytical work on the conflicts there.  Reasonable people should at least be able to agree on the facts.  That seems not to be possible in Bosnia these days, so the best I can do is offer an alternative perspective on the facts that seems to me well-grounded (but I hasten to clarify that I did not write this material, much as I agree with it).  So here goes, on four more points from page one of the most recent ICG report.

“State institutions are under attack by all sides”.

This is factually incorrect. State institutions are under attack from certain Croat and Serb political parties. The Bosniaks are not attacking them and not all Serb and Croat political parties are attacking them.

“The authorities of the larger of the entities, the Federation, were formed controversially – a main state institution said illegally – in March and are disputed by Croats, who have created a parallel Croat National Assembly”.

This consists of one factual error and several half-truths:

—         The reference to a “parallel Croat National Assembly” is factually incorrect. There is only one Croat National Assembly, and it is not “parallel” in any sense of the word. Rather, it is completely legal.

—       The HDZs had the opportunity to challenge both the “illegal” election of the Federation Presidency, and the nomination of the Federation government before the Federation Constitutional Court. They filed appeals, but then inexplicably withdrew them when it became clear the court would probably rule against the HDZs. Therefore, the HDZs have not mounted a court challenge to either the Federation Presidency or Government, even though such legal remedies are available.

—       The same legal criteria were used in 2011 by the Federation House of Peoples’ to elect the Federation Presidency as were used to elect the Presidency of the old government in early 2007, i.e., the House of People’s was formed when sufficient members for a quorum had been chosen, but before they were certified by the Central Election Commission. Thus, if the election of the current Presidency was illegal, then so too was the election of the former Presidency. By extension, this would render illegal all laws and acts passed in the Federation since 2007.

“The two HDZs and the biggest winners of the October 2010 elections, the Social Democratic Party (SDP), all rejected reasonable internationally-brokered coalition proposals”.

This is factually incorrect. Only one side – the HDZs – turned down the offer. The OHR – with the full support of the Ambassadors of the PIC Steering Board and the EU, conducted mediation between the two camps. Both camps agreed on general principles for a government platform. The mediation broke down over maximalist demands from both sides regarding allocation of posts. The OHR then consulted with the Steering Board Ambassadors and the EU and split the two positions down the middle, giving each side half of what it wanted. It then presented this to the two sides in a take-it-or-leave-it package. After much grumbling, the SDP accepted the offer. The HDZs refused. Thus, only one side – the HDZs — rejected the proposal.

“The SDP then formed a Federation government in violation of the entity constitution and against the advice of the state-level Central Election Commission (CEC)”.

This is factually incorrect. At no point did the formation of the Federation government violate the Federation Constitution. So too, the Central Election Commission never reviewed the matter of government formation in the Federation, as this does not fall within its mandate. Had the Federation government formation been problematic, the HDZs would in all likelihood have challenged it before the Federation Constitutional Court. As noted earlier, the HDZs launched two appeals, but then withdrew them.

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.