Bosnia and Herzegovina (BiH) once again waits for the final say on another fictional crisis triggered by political elites. A decision on whether a contentious referendum on state laws concerning the judiciary should take place in the Serb-majority part of the country is expected in the coming weeks.
In theory, the last word on whether the referendum can go ahead will be issued by the Constitutional Court of Republika Srpska (RS) — one of two entities which make up BiH. However it is widely perceived that in reality, the decision will rest on how far the current President of RS, Milorad Dodik, decides to exercise his extensive political capital. Now, we await another round of EU-moderated ‘Structured Dialogue’ between Bosnian political leaders, which is due to take place in Brussels on September 10.
The potential referendum relates to decisions that have been made by the Office of the High Representative (OHR), the ad hoc international institution that is responsible for overseeing the implementation of civilian aspects of the Dayton Peace Agreement, which ended the war in BiH. In order to know the complete story relating to the OHR’s mandate, we must therefore once again go back to the end of the Bosnian war and the political context which led to the current game of fictional referenda.
The General Framework Agreement for Peace in Bosnia and Herzegovina, which was initiated in Dayton, Ohio (and ultimately ratified in Paris in December 1995), did two things: it ended the three and a half year long war, and it defined the future political system and relations between belligerents. The agreement left a de facto divided country with two entities — Republika Srpska and the Bosniak-Croat Federation — and weak institutions at the state level.
Among other issues, the peace agreement included the official text of the new Constitution of Bosnia and Herzegovina (Annex 4), and the lesser known Annex 10 Agreement on Civilian Implementation. The latter annex referred to the part of the process where the international community, together with local actors, provided basic necessities for a functioning political system in the country. In this regard, one of the crucial points was the establishment of the OHR. It became a highly important institution in the first 10 years after the war by providing effective measures that ensured the basic functioning of the state. Measures ranged from banning politicians that are accused of (or connected to) war crimes or the protection of war criminals from taking up positions in state institutions, to deciding on issues such as introducing a joint currency.
The mandate of the OHR was stipulated as follows in Annex 10:
“In view of the complexities facing them, the Parties request the designation of a High Representative, to be appointed consistent with relevant United Nations Security Council resolutions, to facilitate the Parties’ own efforts and to mobilize and, as appropriate, coordinate the activities of the organizations and agencies involved in the civilian aspects of the peace settlement by carrying out, as entrusted by a U.N. Security Council resolution.”
So, what was the main idea behind such an innovative function in post-war BiH? When deemed necessary to do so, the OHR attempts to resolve any difficulties arising in connection with the civilian implementation of the Dayton Peace Agreement; the position is named in the Agreement as the final authority in this regard.
The OHR is nominated by the Steering Board of the Peace Implementation Council (PIC), a body that is made up of countries and international organizations that are involved in the implementation of the peace process in BiH; following the PIC’s nomination, the decision is verified by the U.N. Security Council.
The OHR’s powers have evolved over time, reflecting the reality of the situation during this transitional period for the Bosnian state and society.
The first concrete changes to the OHR mandate, which were seen as a response to the challenges in implementing the peace process, came during the PIC’s Bonn Conference in December 1997. The PIC stated that in order to “facilitate the resolution of difficulties,” the OHR could make “binding decisions, as he judges necessary.”
This included: “interim measures to take effect when parties are unable to reach agreement, which will remain in force until the Presidency or Council of Ministers has adopted a decision consistent with the Peace Agreement on the issue concerned.” It also went as far as sanctioning “other measures to ensure implementation of the Peace Agreement throughout Bosnia and Herzegovina and its Entities, as well as the smooth running of the common institutions.” In other words, any time that the two divided factions could not agree on something, the OHR had the power to take the decision for them.
So, here was the international community, dazed and amazed by the fact that two years after a war with over 100,000 deaths, and three belligerent groups, the country couldn’t seem to find peaceful solutions for their daily quarrels. In the first few years of peace, squabbles about which writers should be portrayed on the future common currency, which alphabet should be used on license plates, and what the design of passport covers should look like were all considered major political challenges.
Thus — though it wasn’t without debate and resistance — they made the High Representative the person in charge. The so-called ‘Bonn powers,’ granted authority to the OHR in order to prevent any delay in the implementation of the Dayton Agreement, and to undermine any obstructionism. The OHR took decisions and measures that were necessary to ensure the state’s basic functioning. But he also attempted to solve problems that, in retrospect, can also seem ridiculous to be entrusted to, and/or imposed by, an international authority; such as the look of the country’s official flag.
But back to the course of events that have led to the potential ‘referendum on nothing.’
Birth of State-Level Judicial Institutions
In November 2000, Wolfgang Petritsch, who was High Representative at the time, announced his decision to introduce the Law on the State Court of Bosnia and Herzegovina. Prior to this, all judicial institutions (with the exception of the Constitutional Court of BiH) operated at entity level and below, as the peace agreement left the country with weak state institutions but strong powers at a lower level, particularly with regard to the judiciary. The new State Court was intended to handle war crimes and inter-entity organized crime.
The text of Petritsch’s decision was based on a Council of Europe ‘Venice Commission’ draft law, and therefore it did not come entirely out of the blue. However, the Parliamentary Assembly stalled the adoption of the law and as a result, Petritsch decided to simply impose it.
A lesser known fact is that in July 2002, more than one and a half years later, the Parliamentary Assembly actually adopted the law. The Chairman of the House of Peoples — one of two chambers of the Parliamentary Assembly — and co-signatory of the act was Nikola Spiric. Today Spiric is one of the leading figures in the Alliance of Independent Social Democrats (SNSD), which is led by the President of Republika Srpska, Milorad Dodik.
In August 2002, the new OHR, Paddy Ashdown, passed a decision enacting another law relating to the judiciary: the Law on the Prosecutor’s Office of Bosnia and Herzegovina, which provided the basis for establishing this institution at state level. Once again, in October 2003, both chambers in the Parliamentary Assembly of BiH adopted the Law. And guess who was the chairman of the Assembly’s other chamber, the House of Representatives, at the time? Nikola Spiric, from the very same party that would later oppose these measures.
The legal framework for judicial institutions in BiH was later changed a number of times during the process of justice reforms, and on various occasions was reaffirmed by BiH’s legislative bodies.
However, a popular — but incorrect — public belief prevails that the present-day judicial legislation is merely the result of measures imposed by the OHR. (This erroneous position is even effectively spelled out in the heavily loaded referendum question).
New Approach From the International Community
After the April 2006 failure of negotiations between BiH’s political forces on constitutional reforms — negotiations that were meant to result in the enshrining of state-level powers for the Prosecutor’s Office and State Court into BiH’s Constitution — and changes to the political landscape following the general election later that same year, the international community lost interest.
In this context, introducing a further strengthening of state-level justice institutions lost its political relevance. With no international players interested in pushing further reforms, the new dominant narrative coming from parties in Republika Srpska was focused on shutting down the Court of Bosnia and Herzegovina.
This argument was led by Dodik, leader of the same SNSD party that had previously played a direct role in supporting the acts on judicial reforms in the state Assembly. It seemed that SNSD utilized the issue of judicial institutions as leverage on two fronts: Firstly, to appeal to populist notions of ‘protecting the Serb ethnic interest,’ and secondly as a standing threat in case BiH’s Prosecutor’s Office decided to act on allegations of organized crime and corruption among some of RS’s top officials.
So from 2010, Dodik’s SNSD went on the offensive, culminating in April 2011 with a decision by the People’s Assembly of Republika Srpska to call a referendum within the Serb-majority entity. The question to be put to the people was:
“Do you support laws imposed by the High Representative of the international community in Bosnia and Herzegovina, in particular on the Court and the Prosecutor’s Office of Bosnia and Herzegovina, and their unconstitutional verification by the Parliamentary Assembly of Bosnia and Herzegovina?”
His bluff caught the EU’s attention, which sent its High Representative for Foreign Affairs and Security Policy at the time, Catherine Ashton, to Banja Luka in RS to ease tensions. This led to the initiation of the so-called ‘Structured Dialogue on Justice,’ which seems to be a piece of political theater aimed at allowing Dodik to back away from the referendum without losing face.
Reprisals of the Fictional Escalation
More than four years later, it’s the same people, same show, same audience. In July, Dodik sent virtually the same initiative to the Assembly, to organize a referendum with the question:
“Do you support the unconstitutional and unauthorized imposition of laws by the High Representative in Bosnia and Herzegovina, especially the imposed Laws on the Court and Prosecution, and the application of their decisions on the territory of the Republika Srpska?”
The decision passed the People’s Assembly of RS with 45 votes in favour; 31 opposition members abstained, while the five members from the Bosniak-Croat coalition ‘Domovina’ left the session. However, the decision was not enacted. It went to the Council of Peoples, a chamber of delegates tasked with making sure decisions of the Assembly are not damaging to the ‘vital interests’ of constituent peoples: Bosniaks, Croats, and Serbs. On July 23, the Bosniak delegates in the Council of Peoples vetoed the decision. The ultimate decision will therefore technically be made by RS’s Constitutional Court, which has the power to overrule the Council of Peoples’ veto, and allow the People’s Assembly vote to stand.
Yet the long and convoluted process is exactly what Dodik wants, as it leaves him plenty of room to exert his already considerable influence. The careless and imprecise wording of the referendum question itself demonstrates that this is not something that Dodik ever intended to reach an actual vote. In the meantime, he can continue to draw out the timescales, since no date for the referendum has been set, meaning that this will require yet another round of debate in the Assembly.
Under the assumption that RS’s Constitutional Court allows the referendum to go ahead, the Assembly can set the date within a six month period, meaning that the whole debacle could serve to raise tensions well into 2016. In the meantime, Dodik would be left with significant bargaining power for the coming year.
Dodik’s true intentions became clearer when he issued a series of demands that he wanted to be met in exchange for calling off the referendum, during a press conference in Belgrade. It followed a joint statement by the PIC (minus Russia, who abstained), which condemned the decision to hold a referendum.
Sitting alongside Serbia’s Prime Minister, Aleksandar Vucic, who also urged him to reconsider the referendum (as part of Vucic’s own political agenda and desire to present himself as a regional ‘stability’ factor), Dodik’s demands were general and lacked concrete steps for implementation. However they all seemed to play to a general theme of making prosecutions of high-level SNSD officials less likely.
The first was that ‘the Court and Prosecutor’s Office should be independent,’ a nod to perceived international influence and interest in ensuring high level prosecutions; the second demanded was that ‘all who committed war crimes should be punished,’ an implication that prosecutions should not focus on Bosnian-Serbs; the third was to change the Criminal Code of BiH, a cryptic reference which some have assumed relates to his wish to see the transfer of serious crimes prosecutions from the state court to entity level institutions; while the fourth demand was that the Criminal Code should not be retroactively applied in relation to war crimes. The final demand has already been considered by the European Court of Human Rights and the Constitutional Court of BiH, with both of these institutions having previously limited retroactive application, even at the cost of letting a number of war criminals walk free. But the SNSD leader seems to ignore these facts and continues to pursue making demands out of yesterday’s news.
The next ‘important’ step will be the results of another round of ‘Structured Dialogue’ in Brussels in September. It remains to be seen if the European Union has learned any lessons about BiH’s judicial institutions, the stability of which seems to rely on assurances that the present-day RS leadership will not face future criminal charges.
If the EU starts to allow negotiations on questions that shouldn’t even be on the table — such as a referendum over nothing — there is a very good chance that Dodik’s opponents will be forced to back down on other legitimate issues; a referendum on nothing is always about something.
Dodik’s approach appears to be: “Give me what I want, and I’ll go away.” But such demands remain out of reach for the public and for ordinary citizens.