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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…

Bad model, so limit the damage

Matthew Parish, continuing the conversation about Bosnia that started yesterday, writes (tune in tomorrow for Kurt’s response):

Kurt and I agree on many things, in particular the point at which international attention in Bosnia finally faded and what has happened since. But there is an important point on which I think we disagree, namely the value of the Office of the High Representative (OHR) and what commentators sometimes call “hard power” in state-building.

On one view, sometimes known as “post-liberalism”, post-conflict societies are not ready for immediate democracy. Their institutions are so weak that they cannot engender the political compromises necessary for a multi-ethnic society to function effectively. The solution proffered is to suspend democratic institutions, and/or provide supervision and oversight by an international organisation pending emergence of domestic institutions from a period of fragility. This is the model OHR followed in Bosnia, and it was the first time it was tried after the end of the Cold War.

This model suffers from three problems. First, it neglects the risk of the international supervisor going awry. OHR became a tyrant, disregarding the most basic standards of human rights and political dialogue. In fact the organisation adopted the pre-existing political habits of the former Yugoslavia, acting like a petty local communist party official. It is difficult to see how an organisation susceptible to such frailties can serve as a role model to guide domestic institutions in the right direction. It is at risk of acting as badly as the institutions it is trying to reform.

Second, reliance on an international overseer may inhibit rather than promote domestic political maturity. If politicians believe difficult decisions will be made by foreigners, the tough compromises necessary for the country to make progress may be forsaken because the international supervisors will make the hard decisions instead.

But most fundamentally, heavy-handed international intervention assumes a time scale of international interest which western democracies, working to short electoral cycles, are not prepared to commit to. Intervention was fashionable in Bosnia for a few years after the war, when there was still significant media coverage. But then memories began to fade, and there was ever less political capital in the intervening nations to continuing to engage with Bosnia. And in this lay the seeds of OHR’s collapse. Thus everything OHR built up was destined to dissolve once the west lost interest because it had been imposed without inter-ethnic consensus and the dissenting national groups elected to withdraw at the first available opportunity. I do not see how western interest can now be revived. Silajdzic’s strategy was to try to renew American interest, by creating crises and confrontations; but the international community shunned him for his efforts.

If international attention is doomed never to last long enough to make a difference, then query whether such a project should be ever started. OHR’s fate was to build up the unsustainable. Once international interest in Bosnia faded, Dodik tore down all that OHR had constructed. It is a cruel irony that Dodik was once OHR’s protégé in its struggle with SDS; when OHR fell, Dodik adopted the same agenda as that OHR had been fighting against.

OHR’s work made Bosnia’s fall far harder than it need have been, and on balance I suspect that Bosnia would be a better place now if the “Bonn powers” had never been created. But the OHR model has been copied widely elsewhere. The Bosnian model has been widely cited as a success; yet it was not really so. These are some of the themes I explore in my book “A Free City in the Balkans”.

Kurt thinks we are in big trouble if OHR is not rejuvenated. I think the organisation should never have started work, and now we are left picking up the pieces of a failed theory of international intervention. If Bosnia collapses completely, as I unfortunately think it will, the international community will be in large part to blame for foisting an unsustainable model of state-building upon the country. In light of the mess we are now in, the immediate policy goal should be damage limitation.

A dialogue on Bosnia: why not lighten up?

Colleagues Matthew Parish and Kurt Bassuener, both long-term observers of Bosnia and Herzegovina (BiH), clashed recently over at Balkans Insight in ways that I thought shed light on the situation, so I’ve invited them to continue the conversation here at peacefare.net  I get to pose the questions and post their answers, a privilege for which I thank them.

Here is the first question: 

International attention is no longer focused, as it was in the early 1990s, on Bosnia-Herzegovina.  Why can’t the international community lighten its presence in the country and move from the current High Representative, who has American and Russian as well as European Union backing and unusual powers to impose legislation and remove officials, to a European Union representative, who would no longer be expected to intervene but merely to encourage Bosnia’s preparations for European Union membership?

Matthew responds:

I think this question misstates the extent to which the international community is really involved at the current time. The principal step change was in January 2006, when the assertive and politically astute High Representative Paddy Ashdown retired and was replaced by Christian Schwarz-Schilling. Schwarz-Schilling is remembered as ineffective; but it is forgotten that by Ashdown’s departure the international community had already tired of Bosnia, in my view irreversibly. His explicit mandate – to close OHR – was supported by all members of the PIC at the time. That agenda triggered Dodik’s assertiveness, which rendered some western powers nervous. The policy since then has been to drag OHR out indefinitely in a half-hearted way, always suggesting it would be closed in the next six months but then finding another reason why it should continue for just a little longer.

In the mean time Bosnian politicians have mostly grown to ignore the Office, which is a shadow of its former self. Division between the European powers about the desirability of a heavy-handed presence in the country has enabled the Serbs, and to a lesser extent the Croats, to divide the PIC. The net result is that the organisation is now ignored. Dodik has publicly stated that High Representatives’ decisions will not have force in the RS. He could hardly more explicit.

Thus the notion that the international presence in Bosnia should become lightened assumes that it currently has extraordinary powers. It does not. OHR is a dead letter. The European Union mission cannot emerge from its shadow until the organisation formally closes; but the continued existence of OHR is only symbolic. No High Representative wishes to admit as much, lest they become the scapegoat for Bosnia’s future problems; they would rather pass the poisoned chalice onto the next incumbent. But the international community has ceased to be a significant political actor in Bosnia’s politics. We no longer make a difference.

Some have argued for rejuvenating OHR or some other kind of hard international power in Bosnia, urging that if this does not happen then the country’s existence and maybe even peace are in peril. Those warnings may or may not be auspicious; but I do not think it is realistic to revert to a stronger role. OHR’s authority was supported by recent memories of an atrocious war; significant numbers of foreign peacekeeping troops; and large quantities of aid money. All those things have gone. Moreover many in the EU remain deeply ambivalent about the anti-democratic nature of OHR’s authority and the way in which it exercised its authorities without regarded to fundamental legal standards. There is no appetite for returning to the old days of peremptory dismissals and unilaterally imposed legislation, drafted within the hallways of OHR and imposed upon Bosnian politicians in disregard of the ordinary legislative procedures. The international community created a constitutional structure in Dayton, and ultimately we will have to let that structure run its course.

I think the Dayton structure was inherently unsustainable and we are now in the midst of watching it fly apart. But the opportunity for the international community unilaterally to rewrite the Dayton constitution is long past; and OHR was just a sticking plaster.

And Kurt says:

The short answer to your question, Dan, would be that’s been the practical effect of international policy since 2006 – and look at where it got us.

The PIC Steering Board came to the conclusion that peace implementation was basically finished in 2005, aside from unfinished business like police restructuring and constitutional reform. The dominant view was that Bosnia was functional enough to propel itself into the Euro-Atlantic mainstream; it was just a question of time. So the EU would take on the pre-eminent international role, without need of any executive instruments. So the PIC could also choose someone like Christian Schwarz-Schilling to be a closer. “Ownership” and “partnership” – as well as the still undefined term “transition” – were the buzzwords. I think the assumption in Brussels was that, like the handover of military matters from NATO to the EU, this would be another low-risk way for the EU to build a track record for its Common Foreign and Security Policy with no risk. It was a sure thing.

This prevailing assumption was proven wrong within a span of four months in 2006, in a perfect storm that began with the departure of Ashdown at the end of January. Milorad Dodik became RS Premier in March and all cooperation on making the state more functional stopped. Then the “April package” of modest but constructive constitutional changes was shot-down in the BiH House of Representatives. The election campaign began in earnest that spring, with the Montenegrin independence referendum giving Dodik a talking point and returning “referendum” back into the political lexicon. It took some months for it to sink in that the reality didn’t fit the script. The international community has been consistently behind events ever since, begetting what amounts to a rules-free environment in Bosnia.

I disagree that the international executive tools of the OHR (and EUFOR) are irretrievably broken. They’ve just been allowed to become moribund because of a lack of collective will to employ them.

There is a larger philosophical – even theological – issue at play here when it comes to the EU role. The whole EU approach is based on assumptions of what incentives should be working, since BiH has an enlargement perspective. According to this framework, BiH politicians are representative of (and accountable to) the citizens and their interests, recognize the benefits of joining the EU, and are willing to do the heavy lifting of reform to join the club. Clearly this isn’t happening, but for the EU it doesn’t compute. Why not? Because their “partners” are those who benefit from the current system, and this gives them a better deal than what the EU is offering. These are the “owners” of the system over which the EU wants them to take “ownership.” The current drift toward violent dissolution into ethnocratic (and surely autocratic) fiefdoms is what happens when there is no external corrective to that incentive structure.

Instead of adjusting its approach and employing policy instruments outside the enlargement framework, the EU has instead opted to try to “restore momentum” by simply declaring progress in the vain hope that reality will follow. The grant of the SAA in 2008, despite police reform not being realized, is the most visible example of this dynamic. The rest of the PIC has essentially gone along for the ride on this. Though there is increasing disquiet at the lack of clear thinking of how to match the EU’s means to the situation at hand on the part of the US, Britain, Turkey, Japan, and Canada, there has not been an active counterproposal to the prevailing approach.

I guess the official version from Brussels would be that the EU can’t perform its alchemy because the big bad OHR and its wicked Bonn Powers get in the way, but the reality for five years just doesn’t bear that out.

Sounds to me as if Kurt and Matthew basically agree on the diagnosis, but they look in different directions for the cure. To be continued tomorrow. Tune in then!