I. Introduction and Executive Summary
Republika Srpska, a party to all of the annexes that comprise the Dayton Accords, respectfully submits this 6th Report to the UN Security Council. In this report, Republika Srpska, one of the two Entities that comprise BiH, outlines its three simple and reasonable goals with respect to the international community. These goals are:
- securing the constitutional system guaranteed by the Dayton Accords;
- advancing Bosnia and Herzegovina’s integration with the European Union; and
- restoring constitutional and democratic governance to BiH.
Securing the Constitutional System Guaranteed by the Dayton Accords
The decentralized constitutional system established 16 years ago in the Dayton Accords is essential to Bosnia and Herzegovina’s continued stability and viability as a state. The BiH Constitution, which is Annex 4 of the Dayton Accords, created a framework that makes it possible for BiH’s three Constituent Peoples—Serbs, Croats, and Bosniaks—to live
together in a single state. As the U.S. Deputy Assistant Secretary of State observed earlier this year, “Dayton is not only what ended the war, it is the centerpiece of the agreement that has made Bosnia Herzegovina possible until now.” An international consensus is building that BiH must retain its decentralized constitutional structure. In particular, the United States and the European Union have both recently underlined their support for the Dayton framework upon which BiH is built. Republika Srpska welcomes the recent words of support for BiH’s Constitution and expects these words to be matched by deeds.
Decentralization enhances governmental efficiency—particularly, as academic research has shown, in states in which there are wide variations in political preferences between regions. BiH’s decentralized constitutional structure is what gave Republika Srpska the freedom to enact reforms that have dramatically improved its economic performance and created the conditions for robust growth into the future. A recent World Bank report, Doing Business in Southeast Europe 2011, cited Banja Luka, Republika Srpska’s largest city, as one of two cities in the region that had improved the most since 2008. As international observers have recognized, BiH’s other Entity, the Federation of BiH (“Federation”), has failed to enact similar economic reforms, and its economic prospects have suffered. A more centralized BiH would jeopardize Republika Srpska’s economic reforms because the policies and choices of the Federation, with its much larger population, would dominate.
More evidence of the dangers of centralization lies in the poor performance of the BiH government as it has accumulated greater powers. The High Representative’s long campaign to centralize power in Sarajevo has led to appalling waste and inefficiency. Even an advisor to Ambassador Inzko, the current High Representative, wrote in a 2011 report that approximately 60% of the budget of the BiH government “is spent on the upkeep of nonfunctional or ineffective government apparatus.” Government agencies in Sarajevo also the lack transparency and accountability that requires that the citizens of BiH have comprehensive information about the budgets of BiH institutions. Unfortunately, the International Budget Partnership’s 2010 Open Budget Survey ranked BiH ranked 21st out of the 22 European countries evaluated.
Advancing Bosnia and Herzegovina’s Integration with the European Union
Republika Srpska is working toward the goal of BiH’s eventual membership in the European Union. There is no inconsistency between BiH’s decentralized Dayton structure and membership in the EU. As a top EU official said earlier this year, “BiH must be in a position to adopt, implement and enforce the laws and rules of the EU. It is up to Bosnia and Herzegovina
to decide on the concept which will lead to this result.” The consistency of a decentralized system with the obligations of EU membership is demonstrated each day by longstanding EU members such as Germany and Belgium.
Republika Srpska is leading the way for BiH in enacting reforms designed to advance EU integration. As EU enlargement officials report, Republika Srpska has significantly outpaced the Federation in achieving the reforms required by the Stabilization and Association Agreement and Interim Agreement. The EU’s 2011 Progress Report on BiH notes many reforms by Republika Srpska to help align its laws and regulations with the acquis. For example, the Report observes,
“A harmonisation unit in charge of screening Republika Srpska laws with the EU acquis was established, while other units dealing with EU integration and donor coordination were also established within the same ministry. The administrative capacity of Republika Srpska to monitor EU-related laws improved.” The Report, by contrast, criticizes the Federation for a
“lack of capacity for coordination of EU-related matters within the Federation government.”
As part of the EU integration process, Republika Srpska is currently participating in an EU-sponsored Structured Dialogue on judicial reform. Republika Srpska is working to ensure that the courts and judicial appointment system in BiH are consistent with European standards and BiH’s Dayton structure are free from political interference—including interference by the High Representative.
The High Representative’s pervasive interference with courts in BiH is a key barrier to EU integration. The High Representative has directly and indirectly dictated the outcome of court proceedings and continues to displace the lawful authority of the judiciary. In the one notable instance in which the BiH Constitutional Court challenged the High Representative’s unlawful acts, the BiH High Representative nullified the court’s decision and decreed that any proceeding “which challenges or takes issue in any way whatsoever with one or more decisions of the High Representative, shall be declared inadmissible unless the High Representative expressly gives his prior consent.”
Another barrier to EU integration is the BiH’s system of judicial appointment and discipline, which was largely imposed on BiH by the High Representative. The system’s centralized appointment of judges and prosecutors—even for the Entities—conflicts with the nearly universal practice of democratic federal states in Europe and elsewhere. Moreover, by giving a single body jurisdiction over both judges and prosecutors, the system violates widely recognized European Standards.
Restoring Constitutional and Democratic Governance to BiH
In order to restore constitutional governance and the rule of law to BiH, Republika Srpska seeks the prompt termination of the position of High Representative.
The High Representative continues to exercise and assert powers that radically exceed the scope of his legal authority as defined by Annex 10 of the Dayton Accords. Anyone who has read Annex 10 understands that it authorizes the High Representative as a coordinator of activities by the international community and a mediator between local parties. Instead of following this mandate, the High Representative has continued to issue decrees nullifying the lawful actions of BiH’s constitutional authorities. The High Representative also continues to assert the right to impose extrajudicial punishments against individuals by simple decree—without any hearing or opportunity for appeal. The High Representative has even recently been asserting that the BiH Constitution gives him the power to “resolve political and procedural conflicts.” Anyone who has read the BiH Constitution knows that it does not confer any powers on the High Representative.
The High Representative also wrongly claims that he is the final authority regarding implementation of the entire Dayton Accords. In reality, the Dayton Accords unambiguously limit the HR’s interpretive authority to the interpretation “in theater” of Annex 10, entitled, “Agreement on the Civilian Implementation of the Peace Settlement.” Annex 10 says, “The High Representative is the final authority in theater regarding interpretation of this Agreement on the civilian implementation of the peace settlement.” Recently, the High Representative has claimed, specifically, that the High Representative was created to interpret the BiH Constitution. Again, the High Representative’s claims are completely contrary to the law; the Constitution quite plainly gives interpretive powers to the Constitutional Court, not the High Representative.
Another reason the High Representative’s position must be terminated is his continued undermining of consensus building among BiH’s Constituent Peoples. The High Representative’s corrosive effect on BiH politics is currently on display in the impasse over the formation of a new BiH Council of Ministers. The SDP, the largest Bosniak party, is making maximalist demands, apparently in hopes that the High Representative will come to its aid. These hopes are not unreasonable; when the SDP earlier this year led the creation of a Federation-level government that the BiH Central Election Commission (CEC) declared illegal, the High Representative intervened to nullify the CEC’s decision.
After 16 years of peace, there is simply no justification for the High Representative’s continued presence in BiH. The most recent report on the activities of EUFOR attests that the security situation “remained calm and stable throughout the reporting period.” The EU, in its 2011 Progress Report for BiH, observes that both civil rights and economic and social rights are broadly respected and that BiH has continued to maintain good relations with its neighbors. Given these facts, the EU has recently decided to reduce EUFOR to 500-600 personnel and to close the EU Police Mission in BiH.
The High Representative, who violates the human and democratic rights of BiH citizens, hampers economic development, holds back EU integration, and undermines domestic consensus building, must also now close his offices.
Download the complete 6th Report here.
