Can Europe Make It?

Bosnia and Herzegovina in peril once again

The upcoming referendum in Republika Srpska has the potential to disrupt Bosnia and Herzegovina's entire state structure. Where to turn next?

Adis Merdzanovic
30 September 2015

Milorad Dodik president of Republika Srpska. Wikimedia. Public domain.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 prosecutionearly 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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