peacefare.net

A really bad idea

I imagine in Brussels they are congratulating themselves today for Republika Srpska (RS) President Dodik agreeing to postpone the referendum he was threatening, in exchange for “structured talks” with the European Union on the future of judicial institutions in Bosnia and Herzegovina.

Why is this a bad idea?  Let me count the ways:

• Postponement leaves the threat of the referendum hanging, providing continued leverage to Dodik from a proposition that clearly violates letter and spirit of the Dayton agreements.
• Agreeing to discuss Bosnia’s judicial system with the RS undermines the authority of the prosecutors and judges at what Bosnians call the “state” level (national to Americans, but that means something else in Bosnia).
• Using the enlargement commissioner of the EU to conduct these talks could open the door to de facto negotiations on implementation of the EU’s acquis communitaire with the RS.

To make matters worse, the EU’s top foreign policy official, Catherine Ashton, is reported to have said, “We consider that any legitimate issues require an adequate response.”  And to seal the EU’s groveling, she added, “We welcome your leadership, Mister President.”

Why wasn’t Dodik told to go discuss the issues he is raising with the Bosnian government in Sarajevo?  Why wasn’t any EU discussion of judicial reform undertaken a the state level?  Of course, that would have required that Dodik also be told to get on with government formation (it has been 7 months since elections under a caretaker government).  EU use of its leverage to that end would have been a very good idea.  Allowing Brussels to become an instrument of Dodik’s campaign to enhance the autonomy of RS and demonstrate the ineffectiveness of the Sarajevo government is a really bad idea.

Compare these

Here is an excerpt from Monday’s statement by Serbia at the UN Security Council debate on Bosnia:

We consider that the announced referendum of the citizens of Republika Srpska on the Court and the Prosecutor’s Office of Bosnia and Herzegovina has nothing to do with the territorial integrity of the country and is not in contravention of Dayton Peace Accords. Without any intention to interfere into the internal affairs of Bosnia and Herzegovina, we consider that legislative initiative belongs only to competent assemblies formed by the legitimately elected representatives of citizens and that there are no powers on the basis of which it could be taken over by other governmental organs in Bosnia and Herzegovina or by the international presence.

Here is an excerpt from the statement by Croatia on the same occasion:

In this respect, we echo previous speakers who have expressed serious concern regarding the unilateral decision by Republika Srpska to hold a referendum on challenging the authority of state judicial institutions and rejecting the authority and past decisions of the High Representative. We believe this decision should be reversed, as it undermines the constitutional structure of the country and could undo the positive developments achieved since the entry into force of the Dayton Peace Agreement. If the referendum moves forward, it may foster new tensions in the country and the region. Croatia underscores that all Parties should respect the Dayton Peace Agreement and acts of the High Representative taken with the approval of the Security Council acting under the authority of Chapter VII of the UN Charter.

I was originally tempted to comment on this contrast, but I think I’ll leave it to readers to judge which one is sincere and which is disingenuous.

PS: A hint to non-Balkan watchers: the first statement would justify secession from the Union by South Carolina.

PPS:  For the record, the referendum question in the RS reads as follows:

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?

Take a guess as to which way those who wrote the question want you to vote!

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.