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Bosnia and Herzegovina (BiH) once again finds
itself in a perilous situation, as a referendum in Republika Srpska
(RS), the smaller of two administrative units in that country, has
the potential to disrupt its entire state structure. Called by RS
president Milorad Dodik, the referendum seeks to negate the
authority of the state court of BiH, the prosecutor’s office and the
Office of the High Representative (OHR), currently led by Valentin
Inzko, in Bosnia’s smaller entity.
Established as part of the Dayton Peace Accords
that ended the 1992-1995 war in Bosnia, the OHR’s task was to
implement the civilian aspects of the internationally brokered peace
agreement. The head of this institution is elected by the Peace
Implementation Council (PIC), which oversees the general
international strategy in Bosnia, while a Steering Board supervises
the OHR’s actions and offers advice on a day-to-day basis.
The institution’s main task was to help and
coordinate the establishment of a new state structure, also agreed
upon as part of Dayton. The latter created a rather weak central
state and gave many administrative competencies to two sub-state
units called entities: the RS, nowadays mostly inhabited by Bosnian
Serbs, and the Federation of BiH, where today Bosniaks and Bosnian
Croats form the majority. Both entities have their own governments,
parliaments, and courts.
Faced with serious resistance to the
implementation of the Dayton agreement in 1997, the international
community awarded the OHR special intervention prerogatives. Through
the so-called Bonn powers, the institution could henceforth directly
impose or nullify laws if deemed necessary as well as remove from
office public officials if they violate the peace agreement. This
instrument has been used regularly in the past in order to
strengthen the central state and make the complex political system
work––and it has been regularly criticised, in recent years most
vehemently by the Bosnian Serbs.
The referendum has to be seen as part of this
discussion, even though it is by no means limited to it. While
Milorad Dodik justified the referendum with the high costs and an
alleged anti-Serb orientation of the state court and prosecutor,
others have suggested different motives, for example fear of
prosecution, early campaigning or simple political theatre.
According to the US Embassy, the referendum ‘poses [a threat] to the
security, stability, and prosperity of Bosnia and Herzegovina’ and
constitutes ‘a violation of the Dayton Peace Accords’.
While Dodik justified the referendum with the
judicial institution’s high costs and an alleged anti-Serb
orientation, others have suggested different motives, for example
fear of prosecution, early campaigning or simple political
theatre.According to the US Embassy, the referendum ‘poses [a
threat] to the security, stability, and prosperity of Bosnia and
Herzegovina’ and constitutes ‘a violation of the Dayton Peace
Accords’.
RS authorities present the issue as a legitimate
debate about the state judiciary that may even spur reforms and thus
see no legal problems in holding the referendum. On the other hand
representatives of the international community––the Steering Board
of the Peace Implementation Council (PIC), a body composed of
ambassadors representing the world’s powers, and the High
Representative (HR) himself––claim that neither entity has the right
to vote on issues that lie outside of its competence.
Since the state court and prosecutor are central
state institutions, their fate has to be decided on central state
level. We are thus confronted with a legally dubious act not only
violating the Dayton Peace Accord but also threatening the stability
of the state.
Given these circumstances, why does the
international community not simply declare the referendum law void,
using the OHR’s so-called Bonn powers? After all, the Bonn powers
are precisely the tool to prevent, or correct, such violations of
the peace agreement and secure the stability of the state by
imposing decisions.
There are two separate, but complementary
explanations for the internationals community’s decision not to
intervene in this way. The first one is tactical, as the referendum
is still not set in stone. Even after the decision of the RS
constitutional court to reject a Bosniak veto, the state
constitutional court could still intervene and ultimately decide
whether or not there will be an actual vote. As we have seen, there
are legal reasons to declare the law invalid, which is what the
internationals might hope for.
Additionally, Dodik has signalled a readiness to
negotiate within the so-called structural dialogue, initiated by the
EU in 2011. Back then, the RS president called off a referendum on
the same issue after a visit of EU High Representative Catherine
Ashton. Even though, as has been rightly argued, accommodating Dodik
in whatever form is hardly a wise strategy, the international
community probably hopes for the referendum to be called off once
again, in full or in part. Reportedly, intense behind-the-door
negotiations are currently taking place to achieve precisely this
goal.
The second reason for not using the Bonn powers is
far more important than the first: as a tool for resolving political
issues, the Bonn powers have been dead for quite some time.
From a practical point of view, given the high
dissonance of opinions among the PIC Steering Board members, the HR
simply cannot apply them. Roughly since Kosovo declared its
independence, Russian opposition to the Bonn powers has increased,
especially if directed against the Bosnian Serbs.
Russia started introducing asterisks on Steering
Board communiqués indicating that it cannot fully support the
respective statements. The current one, criticising RS’s action,
bears such an asterisk as well. Russia has even publically supported
the referendum plans, deeming them a matter of internal Bosnian
politics. Without international consensus, the Bonn powers cannot be
used.
Furthermore, even if applied, the Bonn power
decision would probably fail to be implemented. The OHR has become
increasingly aware of the fact that there simply is no mechanism to
actually implement a Bonn power decision if domestic forces refuse
to accept it. This was especially clear post-2007, when RS
authorities vehemently opposed an imposition by then-High
Representative Miroslav Lajčák leading to resignations and public
protests. Despite its legal authority, the OHR lacks the respective
political and economic resources.
It thus seems unlikely that the HR will step in
and eventually stop the referendum plans. Even if Valentin Inzko
decides to use his intervention prerogative, it would probably be as
the last resort and only after all other options have been
exhausted. It may indeed come to this, however, if Dodik choses to
ignore an eventual decision by the Constitutional Court.
It is presently unclear what the repercussions of
such a Bonn power imposition would be; at that moment, the dynamics
might be too strong to stop, which makes this strategy rather risky.
We may all end up in a game of chicken, where nobody can truly win.
If the Bonn powers were an effective tool, the OHR
could end the referendum right now, saving valuable time and
directing political efforts towards more important issues, like the
reform agenda. Instead, we find ourselves engaged in senseless
discussions.
It might be that precisely because the Bonn powers
still––at least in theory––exist as a potential way out, no stronger
action has been taken against the brinkmanship of Bosnia’s smaller
entity, now effectively resulting in a referendum on whether a
sub-state entity is ready to accept the authority of the state.
Despite their non-usage, the Bonn powers thus still seem to affect
international decision-making and the political process, which is
highly problematic.
The internationals, led by the European Union, are
well advised to act as if the Bonn powers were not there. There
needs to be a coherent and clear voice against the observed actions.
Obviously, verbal condemnations are not enough and stronger means of
sanctioning need to be employed. The unequivocal statement that the
referendum constitutes a violation of Dayton needs to translate into
EU’s actions against those initiating it.
The EU has been slowly but surely losing its
credibility in Bosnia. This is the best opportunity to restore at
least part of its feeble reputation and put an end to this spiral of
brinkmanship.
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