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Lessons Learned?

02 October 2015 by Kurt Bassuener
Dear Reader,

Six weeks ahead of the Republika Srpska's scheduled referendum on the constitutionality of the entire state judiciary – which previous RS governments co-created by inter-entity agreements and approval in the Parliament (including with RS President Milorad Dodik's party support), it is worth a look back at how we got here.

Nearly six years ago, after the failure of the "Butmir process,” Dodik was also threatening a referendum on the judiciary and withdrawal from state institutions. In that instance, the approach of the EU-led international community – one driven by process and a theological rejection of Dayton’s enforcement instruments – delivered Dodik a victory by curtailing international prosecutors and judges for organized crime and corruption and rewarding obstructionist anti-Dayton maneuvering. This came at a time when he was under investigation by the Office of the Prosecutor for alleged corruption, it should be noted. Once achieved, he pocketed that concession and never retreated. While the long-mooted referendum may or may not be held, rest assured that if it isn’t ("for now,” as he put it in 2011), it will most likely be due to another concession granted to Dodik, further eroding the judiciary and the state more broadly, in the hope of preserving the latest international false grail – this time, the doomed (and still not public) "Reform Agenda.”

The e-mail below, written to friends and colleagues in Washington DC and in other friendly capitals, was written in 2009 following the failure of High Representative Inzko, under strong pressure, to impose an extension of internationals in executive roles in the BiH Office of the Prosecutor and the Court of BiH, despite entreaties from both to maintain them. DPC assembled a sign-on letter to the High Representative to encourage him to maintain these personnel, linked here. The text of the e-mail below, written in haste and anger, has only been corrected for some typos.

One hopes that now that the referendum has been called, some Western resolve would finally be demonstrated. But given past practice, it is hard to summon confidence. It is no coincidence that the referendum is scheduled to be held just days before capitals begin commemorative events to mark the 20-year anniversary of the Dayton Agreement. Sensing weakness, Dodik rarely misses an opportunity to demonstrate contempt.

As then, the leadership of the US in forging a Western consensus is pivotal.

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December 14, 2009

Dear friends,

Today happens to be the 14th anniversary of the signature of the Dayton Peace Accords.

It also saw the announcement by High Representative Valentin Inzko, on a panel with almost the full PIC (Canadians no longer resident here), that only the international war crimes personnel at the Court of BiH would be extended for three years, to the end of 2012. The international legal experts on organized crime, corruption and terrorism would not be extended in an executive capacity. Rather, they will be allowed (over Russian opposition and only if invited) to remain as advisors to the Court.

The reason for this decision? Clearly the fear that extending the organized crime personnel would unduly antagonize RS Premier Milorad Dodik. But he had promised a referendum in advance, even if only war crimes personnel below the appeals level were extended.

My readout from Friday’s discussions at the Steering Board Ambassadors’ meeting was grim, with most present worried about Dodik’s possible reactions, and the Russian ambassador giving Dodik his nearly unequivocal full support. The Spanish Ambassador noted with chagrin, that appeasing Dodik was starting down a slippery slope.

My readout from yesterday's (Sunday’s) Steering Board Ambassador's (SBA) meeting was even bleaker. Only Turkey, Canada, the Netherlands and – surprise – Spain (both who have a voice but not a vote) preserved any dignity in this episode.The Canadian Ambassador, from his perch in Budapest, sent a letter of support for full extension of all Court of BiH international personnel, both war crimes and organized crime. The US Ambassador maintained silence throughout much of the meeting, and justified not extending on organized crime and corruption by noting that – similar to BiH -- the US also had a problem with organized crime and corruption. The Turkish Ambassador made clear yesterday that his government couldn't accept the low-ball approach pushed by the Quint, and ultimately got up and left the nearly 4-hour meeting.

At today's press conference, all were lined-up, including Turkey's Ambassador, so I suspect he got the squeeze. Just a guess, but I can imagine Ankara might have gotten told that they are hardly in a position to oppose the EU as an applicant country, especially when banning political parties. He certainly didn't look like he wanted to be there. Nor did the German DCM, who I know fought the good fight on this and lost within the Ministry.

Anyway, it was a sorry display today. As he entered the room, passing through the assembled reporters towards the Steering Board Ambassadors seated at a panel at the head of the room, with a place vacant for him in the middle, the HR was heard to joke that the seated ambassadors looked like the apostles, and he felt like Judas. The visibly nervous and despondent HR told the press it was one of the hardest decisions of his life – I know he was sweating it. What hit him hardest was the lack of US backing to go all the way. A number of Ambassadors spoke. The Swede made a distinction between war crimes, where he said there was an international obligation, and organized crime, but that the IC was not abandoning assistance. And that set one of the themes – we'll spend money on the fight against organized crime, but we won't do anything politically courageous about it. The EC Delegation head, Dimitris Kourkoulas, went into a laundry list of all they fund on rule of law.

Then Ambassador English spoke. This is directly from my notes, but I won't quote: I want to be clear and unequivocal – the HR enjoys the complete support of the US on these decisions (there was also one on Mostar – will mention briefly below). The HR is supported by the full PIC. War crimes is a special international obligation, so it's right that there be international involvement on these cases. We remain concerned about organized crime, corruption and terrorism. But it's time for Bosnia to take over the full executive mandate on this. The US maintains its vigorous support of the rule of law. International judges and prosecutors (on Organized Crime) should be invited to remain as advisors; the US will support them if they are. I want to reiterate that US support for this decision is full and unequivocal.

Then the Russian Ambassador, Botsan-Harchenko, spoke – not missing the opportunity to rub the rest of their noses in it. It was almost funny, in a perverse way... Again, from my notes: Russia is not in favor of any use of executive powers; we don't think this is good and productive. We are making an exception on war crimes – we don't object to this decision (ringing endorsement, eh?). War crimes, at least, is part of the Dayton mandate of the HR (implication that many of his actions are not). I thought the extension should be for one year, but the majority wanted three years. I want to add that we expect these judges and prosecutors to work in a fair and equal manner. On organized crime, we are happy (yes, he used that word) that these mandates will be over. This is fully in line with the PIC's strategy of ownership. If they remain as advisors, they must be invited by BiH authorities.

Then the British Ambassador, Michael Tatham, who cleared out for the Q and A session, said: The UK strongly supports the HR's decisions – both on international judges and prosecutors and on Mostar. We need these personnel in the war crimes chamber in order to act consistency with ICTY obligations. The UK supports the rule of law in BiH. I would urge BiH politicians to demonstrate their seriousness on rule of law.

Quickly on Mostar – the decision would change the rules of the election of the mayor, to allow in the third round in the Mostar city council for the decision to be by majority vote, rather than 2/3, which is the case now.

Then the Q and A began. Someone from BHT asked Inzko what he thought of Dodik's calls for a referendum - made last night (Sunday) presumably after one of the PIC ambassadors had acquainted him with the upcoming decision). Inzko said he didn't want to speculate on the intentions of RS politicians on this decision, and said he had no further comment. He added on Mostar that the decision has been made but is not yet in force, so politicians could obviate the need by acting. The DANI corresponded started to give a speech on how citizens needed help on Organized Crime, and asked Inzko what he thought would happen. Inzko replied that Solana had asked PM Špirić in June to finance domestic personnel for these posts, and said it was not a question of keeping foreigners or not. He noted a high-profile local mafia case to state there were good BiH personnel to do it. He reiterated that international personnel could stay on as advisors. Federation TV noted that the international community felt pressure from Dodik on the Organized Crime personnel at the court. What was the reason for the decision? Inzko repeated the personnel could stay. But then it started to get a bit more chaotic in the room. Inzko continued: this was a domestic responsibility for domestic prosecutors. The Court and the Prosecutors Office would determine the need for international staff. Then the Registry would make a request. The international community had already decided to donate funds for contract employees or second people for these advisory roles. Finally, an Irish Times stringer long in the region, noted that the EU approach on organized crime was deficient, referring to Romanian and Bulgarian accession and the EC reports on that. Then he said that it looked to him that they held back on the organized crime personnel for fear of Dodik's reaction. "It looks to me that you took a gamble on appeasement and it failed. You failed.” Inzko replied – you obviously didn't listen to what I said. EC's Kourkoulas jumped-in and said: We want sustainable rule of law in this country. That means ownership. The presence of internationals is an exception. But we need to see substantial progress. This is the same for other countries where I've served (e.g., Bulgaria). It's not a question of internationals or not.

Then they called it to a close. The usually world-weary Bosnian journalists, already bristling at the lack of straight answers, started to shout out. One asked why it was another case of one step forward and five steps back. Another shouted "what's the next wish of Dodik you're going to fulfill?”

There is no mistaking this – this is a failure of US leadership. I'm not sure of the calculus involved; if any of you can enlighten me, I'd appreciate it. But my clear sense is that had the US wanted to push on this, we would have had US-UK-Canada-Turkey-Japan-Germany-Netherlands-Spain on side. That would have carried the day. I suspect it's a hangover from the Butmir fiasco, which nobody wants to admit failed, with the self-consoling (and –exculpatory) carping about feckless Europeans and hopeless BiH politicians. But it's all on State, folks – how high up the thinking actually goes I don't know. Have a look at the statement by Jelko Kacin, Slovenian liberal MEP, attached.

The fun part is that it's already failed spectacularly, as you can see below. I missed the Dodik press conference, but there is a readout of it below from someone who did see it. Dodik’s going for a referendum ANYWAY, after we debased ourselves (further). And, his advisor Igor Radojičić, I am told, just appeared on RTRS and said there needs to be a referendum on NATO membership as well, something Dodik has mooted before (after apparently getting the idea from Koštunica in Serbia).

We are entering a very dangerous phase. See attached translation op-ed by the man reputed by many to be Dodik’s most influential advisor, Slavko Mitrović, which ran in Nezavisne Novine on Friday. I think the intentions are very clear.

I suspect a lot of Bosniaks, if not most, sense that the US has now abandoned them to stay on-side with the EU, who they don’t trust to begin with. So they may look at other options... A trial balloon for one such avenue appeared in press baron and wannabe Bosniak national tribune Fahrudin Radončić’s Dnevni Avaz today (attached), speculating on what a Bosniak entity in BiH might comprise. One might recall this paper is the one that has waged a jihad against PDHR Gregorian for the past month or so, with the support of the head of the Islamic Community. Luckily, most Bosniaks didn’t seem to buy the line, recognizing that Gregorian has had the stiffest backbone of any major international actor here in BiH. Only the Turkish and Norwegian Ambassadors are on the same wavelength.

The growing sense here is that there are no more rules, and there is no deterrent to pushing for unfulfilled agendas.

It would be VERY helpful for there to be a hearing in Congress, in either the House or the Senate, ASAP to call on the State Dept to justify its clearly failed policy as soon as possible, along with other witnesses. There is still time to turn back from the brink, but how much is hard to say. Only the US can do it, and State has clearly lost its way...

Best Regards,

Kurt