A Free City in the Balkans: Reconstructing a Divided Society in Bosnia 9780755618729, 9781848850026

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This work is dedicated to William Quayle. A British military officer, William served as head of the refugees and returns task force (RRTF) in Brčko under US Ambassador and Supervisor Robert W. Farrand. William managed the process of orderly return of refugees to their pre-war homes in the Brčko area. As will be described in Chapter Four, his efforts were extraordinarily successful and were not repeated to anywhere near the same degree in other parts of the country. His sheer tenacity and strength of will made possible in Brčko what could not be replicated elsewhere. His work gave back to thousands of people a part of their lives that had been decimated through war. William died on 16 June 2007 at the age of 53, but the fruits of his labours live on in Brčko.

And I will friend you, if I may In the dark and cloudy day. A. E. Housman

ILLUSTRATIONS

1 The province of Bosnia within the Ottoman Empire at the end of the sixteenth century.

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2 The Kingdom of Yugoslavia, divided into banovinas, in 1929.

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3 Map of the states existing in May 2008 that previously comprised the Socialist Federal Republic of Yugoslavia.

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4 Map of territories held by Serb forces in Croatia as of January 1992.

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5 Map of Bosnia and Herzegovina in 1991, showing majority (or plurality) ethnic group by municipality.

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6 Map of the territory claimed by the Croat Community of Herzeg-Bosna (shaded dark), later the self-declared Croat Republic of Herzeg-Bosna.

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7 The location of the Brčko opština, set against a map of Bosnia and Herzegovina showing the post-war configuration of the Entities.

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8 The three parties’ territorial possessions in early 1993.

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9 The Brčko opština in December 1995.

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10 The boundaries of Brčko District created by the Final Award, shown against the boundaries of the Entities and neighbouring Croatia.

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11 One of four A3 (290mm by 420mm) pages of the ballot paper provided to all voters in the October 2004 District elections.

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PREFACE

Between 1992 and 1995, a terrible war raged in Bosnia and Herzegovina. This book is about one very unusual effort made by the international community to reconstruct Bosnian society in one corner of the country after that war. The approach taken was highly experimental, but in certain ways very successful. It revitalised an old and forgotten concept of ‘internationalised territories’, the notion that an area under dispute between competing sovereign states would be placed under a regime of internationally supervised government. While this idea was once rather popular (multiple examples existed between the early nineteenth century and 1939), no territories had been successfully internationalised since the end of World War II, until the effort made that this book describes. The opportunity to attempt something experimental, and to rejuvenate an idea previously forgotten by history, was quite fortuitous. It arose from an inability by the warring parties to agree on the status of a piece of territory in north-eastern Bosnia when they signed the Dayton Peace Accords that ended the war. The area in question encompasses the town of Brčko, a border town with a port on a major river. Brčko is a place few people outside Bosnia have heard of. Yet for the people of Bosnia and Herzegovina, it came to represent the worst brutalities and the most complete destruction of the 1992–1995 war. Because of its strategic importance, this northern Bosnian town was almost completely destroyed. Thousands of civilians were murdered, and ‘ethnic cleansing’ of the town’s majority Bosnian Muslim (‘Bosniac’)1 and Croat populations, was complete. Through forcible population transfers, the town’s three ethnic groups, Serbs, Croats and Bosniacs, had been completely segregated by the hostilities. When the Dayton Peace Accords (DPA), ending the war in Bosnia, were signed in December 1995, the town lay in ruins, the scene of some of the severest fighting in the entire conflict. Yet come to Brčko today, and it feels like an ordinary town in the former Yugoslavia. Reconstruction has been mostly completed, ethnic reintegration has been achieved and there is a modicum of prosperity. Brčko is the wealthiest place in Bosnia and Herzegovina, more affluent even than the capital, Sarajevo.

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The surface scars of war have all but disappeared. This stands in marked contrast to the rest of the country, where the painful process of recovery from war remains ongoing, and development has stalled or is even going in reverse. Brčko is an oasis of post-conflict comparative tranquillity in a country that otherwise remains deeply divided and troubled, but now even Brčko’s status is under threat. This book tells the story of how this extraordinary transformation came to pass and its recent regression, and suggests there are some lessons in Brčko for the international community in how to manage post-conflict reconstruction. By comparing the Brčko experience with the less successful efforts made elsewhere in Bosnia, there are also a number of lessons to be learned in how not to manage international intervention in a war-torn society. Immediately after the war, devastation in Brčko was complete and the town was commonly described by the international community as a black hole of despair. Only Serbs lived in the town; everyone else had fled or been murdered. But crucially, the status of the territory had been left undecided at the Dayton negotiations: because of its immense strategic value to both sides, no agreement on which of the warring parties should keep the territory was possible. The parties were therefore cajoled by the US mediators at Dayton into accepting that the final status of Brčko should be the product of ‘international arbitration’, a process establishing an international private court, called an arbitration tribunal, which makes a binding decision on the disputed issue. The status of Brčko could not have been more politically sensitive and emotionally charged. The outcome of the tribunal process would to a great extent determine whether Bosnia would remain as a unified single state or would fragment into pieces, and both sides were threatening a resumption of war if the decision went against them. But the arbitration procedure turned out to be a cloud with a silver lining. It gave the international community – really, the US government – an opportunity to do something revolutionary, and to attempt a completely new model of post-conflict intervention. The tribunal formed did some astonishing things: it mandated the economic and political redevelopment of the District along multi-ethnic lines, and created a new international civil servant, the Brčko Supervisor, with unrestrained dictatorial powers to pursue these goals. In 1999, the tribunal ordered the complete reconstitution of all public institutions in the Brčko area, into a new highly autonomous unit of local self-government called Brčko District. Brčko became a de facto city-state, a ‘free city’ in the style of the historical examples of Trieste, Danzig and Cracow, politically independent from the rest of the country that was perennially bogged down in post-war ethnic squabbling. Previous internationalised territories had all been created by treaties between the great powers. No court or tribunal had ever created one. There was therefore no legal precedent for what the international arbitration

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tribunal for Brčko did, and its work sits at a rarefied confluence of international law and international relations. Little known in either sphere, the tribunal, and the international civil servants whose positions it established, have been going about their business without significant comment by either lawyers or diplomats outside the country of its operation. Yet the idea behind the Tribunal is extraordinary. By recreating the notion of an internationalised territory, the Tribunal was borrowing from an old and forgotten model in international relations. By creating an international governor, the Tribunal was setting a precedent for forced development by international dictate. The regime of international dictatorship which the Tribunal established continued for over eleven years, and oversaw enormous achievements. Through sheer hard work, a traumatised and fractured society was rebuilt. It was a time of unsung heroes. But these efforts eventually collapsed, in a wave of international indifference. This book describes the Tribunal’s genesis, its operation and the law it applied. It examines the international supervisory regime that the Tribunal established, and the different phases that regime went through. It discusses the new political institutions that were created, and seeks to explain the successes the Brčko model achieved. It compares Brčko with previous internationalised territories, and asks whether Brčko has successfully resurrected a historical model of dealing with disputed territory that before the Dayton agreement had fallen into disuse. An evaluation of the Brčko model will be undertaken, asking whether it is one worth repeating in other conflict zones worldwide. In undertaking this evaluation, a bias must be disclosed: the author was for a time one of its principal officers, so might be expected to give it a positive review. But the picture to be painted is mottled at best. Part of the analysis in this work will focus on both theoretical and practical problems that using international arbitration has engendered, and some of the criticisms that have been levelled at the international legal regime both in Brčko and in Bosnia as a whole. Politics in post-war Bosnia is fiendishly complicated. The Dayton Peace Accords created an absurdly intricate system of government. Bosnia, a country of approximately 4 million people, has 13 prime ministers,2 five presidents,3 one mayor with the powers of both,4 14 general legislatures5 and three constitutional courts.6 A rash of political parties, legal agreements, government institutions, international legal instruments and domestic and international political actors infect the country’s political system. Like any work written about the country’s politics since 1995, this book is littered with acronyms and abbreviations. For the newcomer to Bosnian politics, at first this will all seem ferociously confusing. For ease of reference, each acronym used is explained when it first appears in the text and a glossary is provided at the end. It should be added that this book contains significant quantities of legal detail. What happened in post-war Brčko purported to be a process within the framework of international law, and a significant part

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of this book examines whether that position can be credibly maintained. Therefore references are included to international treaties, provisions of the Constitution of Bosnia and Herzegovina and general principles of international law, where they are appropriate. Care is taken to explain legal concepts wherever they appear, as I hope this work is of interest to many readers without specialist law expertise. What the international community did in Brčko in particular, and Bosnia and Herzegovina as a whole, was an experiment in state-building by foreign intervention. For many years intervention in Bosnia was perceived by the rest of the world as an enormously successful project, and that perception may have motivated subsequent similar attempts elsewhere, from Afghanistan to Iraq to Kosovo to Sudan to East Timor to Haiti. One of the purposes of this work is to hint that the truth about post-war international intervention in Bosnia is not nearly as simple as might be imagined. Through focusing upon a case study in one corner of the country, there is a great deal to be learned about the successes and risks of such a project. As a senior official in the international government of Brčko towards the end of the international community’s intervention in the country, I was very much part of the project. From 2005 to 2007 I was the head of the legal department in the Office of the Brčko Supervisor. During this period I drafted the District’s submissions to the arbitral tribunal, I drafted the Supervisor’s orders, I redrafted the District’s Statute (its mini-constitution), I managed relations with the District Judiciary and I bear a great deal of responsibility for the international community’s later work in Brčko. I have made every effort to preserve intellectual impartiality, by sharing drafts of this manuscript with a variety of critics representing a broad spectrum of opinions about the international community’s role in post-war Bosnia. As the mission was winding down and preparing to close, it was a good time to take stock of the project as a whole, and the principal purpose of this work is to record those deliberations. The main message I have sought to convey in these pages is one of deep moral uncertainty about the wisdom and efficacy of what the international community has recently been doing in the country. Towards the end of the period I was in Bosnia, as the organisation for which I worked collapsed, almost every day I asked myself whether my job could be viewed as a valuable contribution to post-conflict reconstruction, or only an absurd neo-colonial indulgence with no prospect of long-term sustainability. Only the next ten years of Balkan history will resolve that question decisively. This work is modest in its goals, in that it attempts only to explain why that question is so complex, and to suggest that assessing success will be likewise extremely complex in any other similar attempt at international intervention. Bosnia should not be taken as an off-the-shelf precedent for post-conflict state-building elsewhere in the world. The reality is far too subtle and ambiguous for that. There are lessons to be learned from Bosnia, but it is remarkably difficult to say

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definitively what they are. Perhaps the principal themes of the work are to emphasise the importance of long-term commitment and strong long-term interests of foreign states, capable and motivated people, managing corrosive diplomatic interference and an understanding of the enormity of the task of changing historical and cultural attitudes. International intervention in failed states is not something to be undertaken lightly. If there is one message that this book aims to record above any other, it is this: the most noble political project can collapse notwithstanding the very best intentions and high abilities of its creators, if those who subsequently inherit it lack the incentive to persist. It is terribly sad to observe such disintegration, all the more so when one is part of it. To quote Kant, from the crooked timber of humanity, there is nothing that is straight that can be formed. The first chapter of this book asks what we already know about statebuilding and includes a review of some of the recent academic literature. The conclusion is that at the current time we can be certain of remarkably little, but the purpose of this review is to fit the Brčko and the Bosnian experience into the broader debate about what makes post-conflict intervention successful. For those with less interest in a survey of this academic literature, the chapter can be safely skipped, or returned to later. Chapter Two begins with the historical background necessary to understand what the international community was attempting in Brčko, and does not presuppose knowledge of the discussion in Chapter One. The final chapter considers what the Brčko experience has contributed to the issues surveyed in the first chapter. This book refers to a number of towns and regions throughout the former Yugoslavia. The political boundaries, and battle lines in conflict, have been redrawn throughout the Balkans on many occasions. Familiarity with the geography of the region is generally assumed, but to assist the reader who is not so familiar, a series of maps are included in Chapter Two that show the shifting political boundaries of the western Balkans. A few words should also be said about the language(s) spoken in Bosnia and Herzegovina. Prior to the wars in the 1990s, the prevailing language throughout Serbia (excluding Kosovo), Croatia and Bosnia and Herzegovina was called ‘Serbo-Croat’. There were regional differences in dialects, but they were quite minor. There were also mild differences in accents. The principal difference, however, was the script: Croats and Muslims would use the Latin script, whereas Serbs would use both Latin and Cyrillic scripts. In Bosnia and Herzegovina, the most multi-ethnic of all the Yugoslav republics, most public signs would use both scripts. Since the end of the war, the term ‘Serbo-Croat’ is no longer heard. Bosniacs call their language ‘Bosnian’, Croats call their language ‘Croatian’, and Serbs call theirs ‘Serbian’. The differences between the dialects have been deliberately exaggerated. Likewise, the three groups have developed divergent accents to emphasise their differences. Although they sometimes pretend not to,

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they all understand one another completely. Bosnian Serbs now write predominantly in Cyrillic. In Republika Srpska, the Bosnian Serb political unit, only Cyrillic public signs are used for the most part; in the Federation, the remainder of the country,7 only Latin signs. In Brčko District, a strict policy of using both scripts on all public signs was used. In the Office of the High Representative, the international organisation governing post-war Bosnia which this book is in large part about, the phrase ‘lokalni jezik’ (local language) is used to identify the language without having to give it an ethnically partisan descriptor. Where local language words are used in this book, they are written in the Latin script, with local punctuation. For the English speaker, the best pronunciation guide is to remember the following few simple and inaccurate rules. ‘j’ is pronounced ‘y’; ‘i’ is pronounced ‘ee’; ‘č’ and ‘ć’ are both pronounced ‘ch’; ‘r’ is a vowel, pronounced as a trilled ‘er’; ‘š’ is pronounced ‘sh’; and ‘đ’ is pronounced as a soft ‘j’ or ‘zh’. The town which is the subject of this book, Brčko, is therefore pronounced ‘Berchko’, with the emphasis on the first syllable, and the vowels pronounced short rather than long. A resident of Brčko is called a ‘Brčak’ (‘Berchak’). Something should also be said about this book’s use of the English language. Because I am English, British English spelling is used in the text. Because the American government and American officials have played a dominant role in post-war Bosnia, many of the source documents to which this book refers were written in American English. When quoting those documents or US academic sources, the original (i.e. American English) spelling is used. Large degrees of research were involved in mapping out the story of Brčko’s recent history. International organisations in general are highly secretive. They are typically above the law of the countries in which they operate, and therefore not subject to freedom of information legislation or legal disclosure obligations. Moreover, the opaque mechanisms of political accountability to which they are subject, in which international officials report behind closed doors to consortia of anonymous civil servants from interested governments’ foreign ministries, do not lend themselves to free circulation of information. All these things are true of the Office of the High Representative, the international organisation that has run post-war Bosnia, and they are likewise true of the morass of other international organisations that have permeated post-war Bosnian politics. Similarly, Bosnian government officials are notorious for their secretive attitudes, deriving from their communist heritage and a culture of corruption that discourages transparency. Many of the documents recording the activities of international organisations in the post-war period in Bosnia may not survive, whether through neglect, theft or deliberate destruction. Acquiring the necessary information to write this book relied upon the personal indulgences of a great many people, and that research may in the future prove impossible to reproduce. Gratitude is due to Jasmin Adilović, Jayne

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Ansell, Dijana Asčerić, Suzana Bursać, Mia Cukle, Jim Friedlander, Susan Johnson, Damjan Kaurinović, Gordana Kojić, Bojan Kovačević, Bill Krisel, Ivan Krndelj, Sophie Lagueny, Alan Mauro, Adam Moore, Asim Mujkić, Osman Osmanović, Mirjana Ostojić Parish (particularly for help with formatting), Lord David Owen, Howard Parish (particularly for help with illustrations), Margaret Parish, Branislav Perkić, Nataša Predojević, Sacha Quayle, the late William Quayle, Zora Radojević, Marijana Rakić, Melissa Ruggles, Dragan Sikimić, Russell Sleigh, Cvijeta Tanasić, Mark Wheeler, Greg Wilson and Rebecca Wise, for all the assistance they provided to me, in some cases unwittingly. Particular thanks go to Henry Clarke, Bill Farrand and Roberts Owen, each of whom spent many hours labouring over and criticising early drafts of several chapters. To the extent this final product does not match their hopes or expectations, it is a matter of personal regret. I must also extend profuse gratitude to Lester Crook and Liz Friend-Smith, my commissioning editors at I.B.Tauris, for their patience, support and understanding in helping me bring this manuscript to fruition. Last but not least, an early version of this work constituted my thesis submission for the degree of Doctor of Jurisprudence at the University of Chicago Law School. The inconvenience and suffering I imposed upon my twin supervisors, Richard and Eric Posner, was out-weighed only by the value of the indulgence, thought, advice and counsel they provided. Without them this work would have been a shadow of itself. Be that as it may, responsibility for all errors and omissions remains mine alone.

1 BUILDING STATES

The latest fad in international relations is intervening in foreign countries identified as having ‘failed’. Once so identified, international legal, economic and political experts are engaged to create new public institutions that are less likely to ‘fail’ again.1 So the narrative goes, new, stable states are created from the ashes of disastrous governments that have collapsed amidst tyranny or civil war. Benign intervention thus promotes international stability and global prosperity, and reduces the risk of further wars. The contemporary label for efforts of this kind is called ‘state-building’. This book is about what may be the most successful attempt ever made by the international community to achieve this goal. It took place in a corner of a newly independent country called Bosnia and Herzegovina that emerged with a very fragile peace from the destructive 1990s wars of secession within Yugoslavia. The state-building exercise that occurred created a place called ‘Brčko District’, a small region of only approximately 100,000 people, virtually an independent city-state within the territory of Bosnia. It was a staggering success, yet little is known about it. It is now on the verge of collapse and its ugly dismemberment seems likely to follow. The purpose of this work is therefore two-fold. It is to examine what makes state-building successful, using the hitherto relatively unknown Brčko model as a case study. And it is to attempt an evaluation of the statebuilding concept as a whole, by asking what subsequently went wrong in Brčko, and whether the problems that infected even arguably the most successful project of its kind ever conceived will inevitably poison other similar attempts. Brčko is a small place, comprising approximately only 1 per cent of the territory of Bosnia and 2 per cent of the population. In one sense the scope of what was attempted there was relatively modest. If it is difficult to make even Brčko work in the long term, then other statebuilding efforts might by their natures be all the more improbable, because they are all the more ambitious in scope. Moreover, Brčko presents an unusual point of comparison. As a general rule, this book will argue, international intervention in post-war Bosnia was not well done. The international organisation responsible for coordinating the international

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community’s efforts in Bosnia, the Office of the High Representative, was a chaotic shambles of shifting policy initiatives, egregious abuses of power and mission overstretch. The efforts in Brčko, pursued by a renegade branch office of the same organisation, were vastly more successful. That raises the question of why things were done better in Brčko, and what lessons can be learned. Before we commence the Brčko case study and our observations on international intervention in Bosnia in general, we should turn briefly to the recent literature on state-building. Brčko and Bosnia cast an unusual light on the debates that have emerged within that writing, and we will do well to be acquainted in advance with it. That is the purpose of this chapter. The aim is modest: only to survey the literature, rather than to explore it in any depth; and while debates will be introduced, there will be no attempt to take positions on them. A number of difficult issues will be left hanging in the air, for we wish only to anticipate what follows. Academic studies of state-building are all relatively recent, because attempts at state-building have, for the most part, all occurred since 1995. Indeed the impetus for attempting post-conflict state-building was the widely perceived success of the efforts in post-war Bosnia. The apparent Bosnian success story motivated subsequent similar attempts in one form or another in Afghanistan, East Timor, Haiti, Iraq, Kosovo, Sierra Leone, the Palestinian territories and several other places worldwide. One of the arguments of this study will be that Bosnia, the precedent for this rash of state-building activity, has not been nearly as successful as is commonly supposed. It would be far too quick to jump to the conclusion that all state-building projects are doomed to failure, but it may be that state-building is a skill, one in its infancy and about which we currently know comparatively little. The Brčko experience is, however, a complex Gordian knot of tough lessons for those who want to attempt it. Much has recently been written on ending civil wars, what to do after they have ended, division of territory versus unification, the efficacy of international organisations in facilitating state-building and building new political institutions from the remains of failed states. Taken in the round, this literature is not particularly intellectually invigorating. Much of it is abstruse, and tends to pivot around a series of theoretical distinctions, such as liberal versus post-liberal and constructivist versus realist, the practical consequences of which are not immediately obvious. Most importantly, the detailed empirical work is lacking, and such as there is draws conclusions that for the policymaker are already obvious.2 Every country that collapses into civil war does so for a different reason, and thus successful reconstruction will depend on different factors in each case. There will be general lessons to be learned, but they cannot be learned by abstract a priori theorising from the postulates of a rarefied political theory. The ebb and flow of the state-building debates have interwoven themselves closely with

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the course of world affairs. But it is a telling indication of the quality of the academic debates that changes in practice have not followed from the theory, but vice versa. The theoretical debates have found themselves hostage to events on the ground, and policymakers have not been driven to any great degree by the theories that have been debated in their wake. This is perhaps indicative of how little the theorists currently know. Statebuilding is a relatively immature science, and so far there is little theoretical work to guide the policymakers. Different styles of international intervention have been in vogue over the last 15 years. But relatively few academic conclusions have yet been drawn with any confidence, and there is little in the way of a corpus of well-accepted theoretical knowledge from which policymakers can cherry-pick when hunting for good ideas. Thus for the time being at least, policymakers must get their hands dirty and explore each client country in depth. Ideological commitment to one theory or another is an extremely poor second best behind detailed local knowledge and rigorous technical competence. The recent explosion of academic writing on state-building or ‘peacebuilding’ began as a reaction to the perception in the 1990s that the international community had a range of novel opportunities to intervene in serious humanitarian crises worldwide. In the United States and the European Union it was realised that when, in the course of internal wars, civilians were dying in large numbers, it was suddenly within the gift of western governments to intervene to save life. Before the end of the Cold War, a confrontational approach to international relations had made such interventions difficult or impossible. Any foreign intervention (for example, the USA in Vietnam, or the Soviet Union in Afghanistan) was seen through the prism of an ideological conflict between communism and capitalism, thus inviting counter-intervention by the opposing power with the aim of frustrating whatever goal the intervening power was pursuing. With the end of the Cold War this cycle was broken and a more enlightened policy towards international intervention was possible. Intervention in foreign conflicts could be pursued to achieve purely humanitarian goals, or to promote political stability, with a far greater degree of international consensus. In principle, international intervention in strife-torn states could now be sanctioned by the UN Security Council, because there was no longer an ex hypothesi reason why one of the Great Powers would inevitably exercise its right of veto over Security Council resolutions. Humanitarian intervention was thereafter driven by pressure groups, who would publicise human suffering and create domestic political momentum within western states to send money, troops and reconstruction experts to foreign trouble zones. But despite the new-found opportunity to intervene in foreign conflicts that the end of the Cold War had delivered, the international community was widely perceived as failing the early challenges that faced it. Civil war in Somalia began in 1991 and led to calls for humanitarian intervention to

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help ameliorate widespread civilian suffering and loss of life. A succession of United Nations Security Council resolutions from April 1992 onwards authorised a peacekeeping mission intended principally to provide humanitarian assistance (mostly food aid) and to create a secure environment for that assistance to be delivered. An international military force, led by the United States, entered Somalia in November 1992 under codename Operation Restore Hope, to alleviate famine and ensure civil security. The mission was a debacle, with an impossibly broad mandate that suffered from inexorable mission creep as US forces attempted to disarm local warlords and were drawn into battle with them in the streets of the capital Mogadishu in October 1993. After the US army lost over 30 soldiers and two helicopters, the US government underwent a policy volte face and withdrew all its troops in March 1994. This set a precedent that the United States could not tolerate loss of life in peacekeeping operations, which fed into a policy of international community inaction in the next international humanitarian catastrophe, Rwanda. A civil war had raged between rival Hutu (majority) and Tutsi (minority) factions since 1990. Under an August 1993 peace agreement an uneasy armistice was reached, supervised by a small UN mission, but by January 1994 the head of that mission reported to the UN Security Council that preparations were underway for large-scale slaughter of Tutsis by Hutus. He requested permission to seize arms caches, a request which was refused by the UN as being beyond the mission’s mandate. In April 1994, the anticipated Hutu uprising began after an aeroplane carrying the presidents of both Rwanda and neighbouring Burundi was shot down. During the next three months an estimated 800,000 Tutsis and moderate Hutus were slaughtered. The Security Council’s immediate reaction was to reduce the size of the UN peacekeeping force to a mere 260 troops, with instructions to focus on evacuating foreigners. Controversial and ineffective French military intervention in the country was subsequently authorised in Operation Turquoise (the French had lobbied against broader intervention, worried about preserving its sphere of influence in the region), but the genocide came to a stop only when opposition Tutsi forces overran the country. As these foreign policy disasters were unfolding during the course of the 1990s, the Bosnian war was also running its gruelling course. The war had begun in March 1992 and was contemporaneous with the US military fiasco in Somalia and the genocide in Rwanda. The historical detail of the war will be explored in the next chapter, but it suffices for now to note that the international community was also heavily criticised for failing to intervene sufficiently early or with adequate determination. A request in early 1992 by the Bosnian government for UN peacekeepers to man its border with Serbia, before war broke out, was rejected ostensibly because there was no precedent for pre-emptive peacekeeping but in fact because no country wanted to place its troops in harm’s way on the front line. A UN

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peacekeeping force with a weak mandate was sent to the country only in 1993, after the majority of the deaths in the war had already taken place. The massacre of thousands of Bosnian Muslims by Bosnian Serb forces in the UN-declared ‘safe haven’ of Srebrenica took place in July 1995 while UN peacekeepers stood by. After Somalia, the US was reluctant to send ground troops and only resorted to the use of air power to bomb the Bosnian Serbs to the negotiating table. Military intervention occurred in the context of a series of stop-start attempts to negotiate a peace agreement between the warring sides, hampered by the inability of EU and US governments to agree what peace treaty model to push. In all, five peace plans were advanced by the international community, the first three by the European Union and the last two by the US government.3 All five plans anticipated partition of the country into what in practice would have been mono-ethnic regions, but the lukewarm support of the US government for the EU-led plans caused the war to drag on far longer than it might otherwise have done. By the end of the Bosnian war there was a widespread perception that the international community bore significant responsibility for the extent of the Bosnian catastrophe, due to mismanagement, hesitancy and bungling (Rieff 1996). It was in the context of these international community policy failures that academics started theorising about when it is appropriate to intervene in another country’s civil conflict, and if so how to do it successfully. Rightly or wrongly, the problem in each of Somalia, Rwanda and Bosnia was perceived as being a lack both of determination and of coherent policy about when and to what extent to intervene.4 It was the UN Secretary General during these conflicts, Boutros-Boutros Ghali, who in many ways initially pushed the policy debate, in his seminal analysis An Agenda for Peace (Ghali 1992; Ghali 1995). Ghali argued for a broad doctrine of military-led humanitarian intervention in the domestic affairs of a sovereign state to save life, when sanctioned by the UN Security Council. But he went on to argue for the importance of subsequent post-conflict peace-building undertaken by the international community. Military intervention alone will not suffice; for without reconstructing broken governing institutions, renewed hostilities may break out when the peacekeeping mission departs. Ghali’s view was that military intervention and post-conflict reconstruction should both take place under the auspices of the United Nations, thus giving the organisation a reason for its continued existence at a time when it was seeking a new role after the end of the Cold War. Ghali’s thesis was taken a significant step further by the International Commission on Intervention and State Sovereignty (ICCISS), a broad international research group established under the auspices of the Canadian government. The commission was given a mandate by the United Nations to explore the legal and policy principles underlying international humanitarian intervention in failed states, and it presented its report in 2001 (ICISS 2001).

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ICISS proposed a liberal doctrine of international intervention, arguing for the position that state sovereignty can be violated where a state will not or cannot exercise its sovereign obligation to protect its own citizens, widespread civilian suffering is occurring as a result and other measures short of military intervention have been exhausted. Its report even goes so far as to suggest that the permanent members of the UN Security Council should not exercise their vetoes when considering approving such operations, and that in exceptional circumstances military intervention may be sanctioned even without UN approval. The report goes on to advocate substantial programmes of post-conflict governmental administration and reconstruction by the international community, as a necessary corollary of intervention and to prevent recurrence of conflict. Thus was the statebuilding agenda born. Essential to state-building, the report opined, is development of domestic security forces, promoting justice and rule of law, economic development and refugee returns. These became the central components of subsequent state-building missions by the international community. This new agenda rapidly gained international acceptance. Suddenly nobody feared peacekeeping missions any more; they were simply a prelude to an optimistic state-building exercise. UN peacekeeping and state-building missions sprang up all over the world, some of the most prominent being in Afghanistan (2001), Cambodia (1992), East Timor (1999), Guatemala (1997), Haiti (1992), Ivory Coast (2003), Kosovo (1999), Liberia (2003) and Sierra Leone (1999). All these operations have been open-ended: even as one mission closed it was rolled over into another5 and the UN retains significant presence in each of these countries up to the present day. The same philosophy was applied even in countries which did not have an immediate history of civil conflict. State-building policies were also developed and executed by a rash of international development institutions, most notably the international development banks.6 The perception of success by the international community in its early efforts in post-war Bosnia fuelled this newfound confidence and the calamities of Somalia, Rwanda and wartime Bosnia were soon forgotten. Indeed state-building became a burgeoning industry of independent experts and policy gurus. The components involved in a post-conflict peacebuilding programme rapidly grew to encompass the full gamut of models of economic development.7 According to the theory underlying all this activity, failed states are so because they have poor political and legal institutions.8 They are impoverished because there is no economic freedom and liberalised markets that together create wealth. They are politically unstable because they are dictatorships in which the government has no sense of legitimacy, and there are no inclusive political institutions to promote power sharing between different groups. Without effective democratic institutions, those competing for power have no forum in

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which to reach compromise and accommodation, and thus they reach for arms. There is no security because the police, judiciary and courts are corrupt and controlled by political elites, and therefore cannot be trusted. In a pique of modernist dogma, the conclusion reached was that if only every failed state had the same political institutions and economic structure as western democracies, repetition of the conflicts from which they had suffered could be avoided. Thus the emphasis on post-conflict peacebuilding must be to reshape the country’s public institutions in the mould of those found in the west. Democracy creates a venue for peaceful resolution of competing interests. Economic growth, created by liberalising market reforms, promotes social stability as the individual pursuit of wealth reduces the incentive to fight over ethnic or ideological differences, lest people lose the wealth they have accrued. Democratic political development will also promote global political stability and make genuine external wars less likely, because democracies do not generally go to war with each other (Eizenstat et al. 2005). Thus state-building is seen as a principal component in an agenda for spreading western political values across the globe, as a result of which human history will enter a new era of unparalleled peace and prosperity (Fukuyama 1993). The standard model of post-war reconstruction would therefore be what came to be known as the ‘democratic reconstruction model, involving constitution-making, elections within two years of the end of hostilities, funding for civil society, and extensive state institutionbuilding’ (Call and Cook 2003). These sorts of institutional transplant from western democracies were not just popular with left-wing liberals. They also became associated with an idealistic strain in recent Republican American foreign policy, often given the title ‘neo-conservatism’: the view that the US government should spread its principles of government, economics and culture to foreign states. In the United States, a remarkable inter-ideological consensus arose about how to achieve state-building and why it is a good idea. This view was not without its opponents and sceptics, many of whom derived their differing perspectives from a more careful analysis of international intervention in post-war Bosnia. We shall consider their views presently, because they strike at the heart of what the international community was attempting to do in the country. But it is worth noting that because Bosnia remained more or less violence-free for the 12 years following the end of the war, it continued to be seen as a success and a model for the ‘democratic reconstruction’ approach. Its supposed lessons were thus replicated elsewhere. When NATO occupied Kosovo, a province of southern Serbia, in 1999, much the same approach to post-conflict reconstruction was used as had been applied in Bosnia. Elections were quickly held, institutional reform was imposed and a new constitution was

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prepared.9 The same model was also applied in Afghanistan following the US-led invasion in 2001, and again in Iraq following invasion in 2003. At the time of writing, all three of these interventions have soured. The problem for Kosovo is the exit strategy, as Kosovar and Serbian politicians are embroiled in a loveless and increasingly violent deadlock after the province declared itself an independent state in February 2008, which seems likely to make international custodianship over Kosovo necessary for the indefinite future. In Afghanistan, it seems that the international military forces will be bogged down in the country for a long time, the central government having minimal control over the country’s provinces and foreign troops engaged in day-to-day street fights with insurgents. Iraq appears disastrous, plagued by a vicious insurgency against US military occupation and ferocious inter-factional fighting, suicide bombers, widespread ethnically motivated murders, an ethnically fractured government and thousands of Iraqis dying each month. There is no coherent exit strategy for US troops and nobody knows what will happen when they do leave. It is yet to be seen what the international political fallout from these unsuccessful missions will be. It may turn out that we observe a profound loss of appetite for international intervention and state-building in future failed states, a degree of self-isolationism amongst the major western powers and a corresponding degree of hand wringing in the academic literature about the wisdom of international intervention in general. That will not be the appropriate response; the proper course will be to examine each conflict in detail, with the benefit of hindsight, and to try to establish what went wrong and what might have been done better. That is the purpose of this book. ‘Post-liberal peace-building’ There are two schools of thought sceptical about the democratic reconstruction model pursued in post-war Bosnia. One school focuses upon the notion that transplanting democratic institutions into postconflict societies is too quick. Although the ideal of democratic marketdriven institutions is a laudable goal, a rapid exercise in constitution drafting and holding elections will not achieve the desired outcome. The so-called ‘liberal peace building’ agenda sketched above is naive, and an altogether more subtle approach, described as ‘post-liberal’ (Barnett 2006), is required. The other school of doubt about liberal peace-building argues that after an ethnic civil war of the kind found in Bosnia, Rwanda and Kosovo, attempting to recreate a multi-ethnic society on a liberal democratic model is simply impossible because rival national groups who hate each other sufficiently to commit mass murder cannot cooperate within a democratic political framework. State-building to reintegrate

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mutually alienated ethnic groups is thus neither practical nor desirable, and at the end of a civil war territory and national groups should simply be partitioned. We shall consider the ‘post-liberal’ view, first followed by the partition theory. The post-liberal writers on state-building fasten on to the observation that, taken in the round, attempts at state-building have not been desperately successful.10 Even after several years of intensive international efforts, many of the countries subjected to post-conflict reconstruction remain tremendously fragile, with endemic political instability, weak legal, security and judicial institutions, worryingly high levels of poverty and unemployment and insignificant foreign investment or economic growth. One reason for the lengthy periods for which UN missions find themselves intervening in post-conflict countries is that so little tangible progress is made by those missions, and the fear remains of renewed civil conflict once external support evaporates. The post-liberal writers perceive two reasons for these failures. Peacekeeping…does not have an impressive track record. Certainly one reason is that it is virtually unimaginable that peacebuilders can create such a nearly ideal society with scant resources and little time under such unfavorable conditions…[second, i]n their effort to radically transform all aspects of the state, society, and economy in a matter of months (and thus expecting conflict-ridden societies to achieve what took Western states decades), peacebuilders are subjecting these fragile societies to tremendous stress. States emerging from war do not have the necessary institutional framework or civil culture to absorb the potential pressures associated with political and market competition. Consequently, as peacebuilders push for instant liberalization, they are sowing the seeds of conflict… (Barnett 2006) The thought underlying the post-liberal view, then, is that transplants of democratic market institutions into countries without them do not work. This is not because western institutions are not the best; they are, but the more difficult question is how to create them in a post-conflict environment. The proper operation of western political and legal institutions assumes a history of their organic development, and a set of cultural values associated with political compromise, moderation, respect for law, acceptance of a differing majority will and the like. Without those cultural values, western institutions will not work; for while democracy, compromise and observance of the law may be mandated on paper, through constitutions, laws and procedures, those rules will not be obeyed by people who do not possess the corresponding cultural values. The mistake of liberal peacekeeping theory is to assume that creation of western institutions immediately produces western cultural and political traits; in fact the relationship

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between institutions and culture is more symbiotic than that. In every western country with liberal political and legal institutions, those institutions have developed gradually, in a piecemeal fashion and in response to particular political incentives on the part of those who have pushed them. The political culture of the country has then gradually adapted in the face of the new institutional rules, things have settled down and then the political dynamic has created another piece of gradual institutional change in response to a new political pressure. Institutional reform is a step-by-step approach and has never happened all at once. There is thus no reason to believe that it can happen all at once in a developing country without a rich history of gradual institutional development, still less one in which all institutions have collapsed in the midst of civil war. This is perhaps to pursue the post-liberal argument to its most extreme conclusion. There are arguable counter-examples to this view: for example, revolutionary France, and the United States after its revolution. It is outside the scope of this book to examine these counter-examples, save in passing in an endnote.11 But this is the essence of the post-liberal viewpoint: institutional reform is a process of evolution, not transplant, and the dramatic transformations that liberal peacekeepers seek within the timescale of a UN intervention mission are simply not realistic. There are a number of consequences that it is argued follow from this position. Below I highlight three of the most common that are found in the literature. All of them are particularly pertinent for post-war Bosnia. (1) At the end of a civil war, or after a period of totalitarian dictatorship, democratic political transplants create chaos. Democracy assumes the competing interest groups in the country will compromise and abide by democratic procedures; but in a post-conflict society the interest groups are incapable of doing that because they have no experience of doing so, or because there is a complete lack of trust between people who have been killing each other. Democracy and a free media can therefore make things worse. They unleash competing political agendas, previously suppressed by a totalitarian government or settled through stalemate or victory in civil war, but the people advancing those agendas perceive no reason to compromise. Typically, in an ethnically divided society, upon an election people will vote exclusively for representatives from their own ethnic groups, who will therefore have an agenda of advancing that group’s interests to the exclusion of others. Thus inter-ethnic political compromise is exceedingly difficult. Democracy may simply produce gridlock in the political machinery, with no effective government possible because of failures to agree. Liberal democracy in a post-conflict society therefore perpetuates a failed state. As will be explored in later chapters, this is precisely what happened in post-war Bosnia. National elections were held in 1996, principally at the behest of the US government, determined to show ‘progress’ in Bosnia in

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an election year and when there was strong US domestic political pressure to withdraw US peacekeeping troops from the country. Local elections were held soon after, in 1997. Both sets of elections brought nationalist politicians to power, elected by each of the country’s three ethnic groups exclusively from their own constituencies. Once elected, those politicians’ uncompromising agendas meant that they could agree upon nothing and the country lacked any effective central government. This trait, once established, continued to the present day; many commentators agree that post-war Bosnia has never had a functioning central government. Once the precedent for obstruction and failures of cooperation had been set, it proved impossible subsequently to break the pattern. Likewise, permitting immediate freedom of the press unleashed gargantuan problems. None of the post-war Bosnian media was independent or neutral, each outlet being controlled in practice by one political party and siding with the interests and perspective of one national group against the others. Again this is a trait which continues to the present day. The media rhetoric became so bilious that in 1997 the US army stepped in to jam Bosnian Serb radio and television transmitters; for more on this see Chapter Four. (2) The prescription following from this observation is that peacekeeping should promote a strong state even if it is not perfectly democratic (Barnett 2006). It is more important to create strong institutions than to have elections. If effective public institutions are created, then even in the absence of elections rival groups in a divided society can learn slowly how to cooperate with one another through the medium of those institutions. Release of a traumatised post-war society into the freedom of democracy needs to be gradual. Therefore one should impose institutional reform before allowing elections. Unelected institutions, of a kind that can be transformed into democratic institutions with elections later, allow disputing parties gradually to develop the necessary skills of political consultation, consensus building and compromise to work together (Paris 2004). These institutions can be initially closely supervised by the internat-ional community, and external control over them can be gradually relaxed until the country is ready for autonomous democracy. When elections are finally held, local elections (where the stakes are lower and cooperation is easier) should precede national elections, as a dry run in practising democratic cooperation. This thought did not generally hold sway amongst the international community in post-war Bosnia. The course taken immediately after the end of the war, to hold quick elections, required the state-builders to work with the newly elected officials to create the new domestic institutions mandated by the constitutional framework set out in the Dayton Peace Agreement. But the officials so elected were mostly wartime figures, in each case representing extreme nationalist politics in the minds of the other ethnic groups. Because these politicians did not want to cooperate with one

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another over anything, the international community had to grant itself broad coercive powers to force the recalcitrant officials to obey. The international community thus had to use threats and force to compel politicians to do things that they did not have electoral incentives to do, and it had to indulge itself in some breathtaking legal fictions to bestow upon itself the authority to do this (see Chapter Four). All this was hardly healthy. Under such a forced, artificial model, progress in institutional development was naturally painfully slow. It was like trying to force a river to flow uphill. The Bosnian approach might be taken as a lesson in how not do things: after an initial burst of ‘liberalisation’ there was a belated realisation of the calamity the international community had unleashed. The Office of the High Representative (OHR) thus had to turn itself into a colonial governor to hold back the tide, which it did in December 1997, shortly after the second (local) set of disastrous elections. In Brčko, the post-liberal approach was embraced to a far greater extent. Local elections were also held in the Brčko area in 1997 and as in many places they were rigged (see Chapter Four). However, those elections mattered little in the long run. The international community effectively annulled their results less than two years later, when the Final Award of the Brčko Arbitration Tribunal declared that the municipal assemblies to which representatives were elected in those elections were to be abolished and recombined in a single multi-ethnic Brčko District assembly. When that Assembly was established, in early 2000, there were no immediate elections; instead international officials handpicked all its members as representative of the various competing political groups. The international community also chose and appointed the mayor (the head of the District’s executive branch) and all senior government officials, who under the law were supposed to be appointed by the elected Assembly. Finally, international officials handpicked all the judges too. Thus institutions were created within a democratic legal framework, but for an unspecified interim period there would be no elections. Once elections were held, they would fit neatly within the institutions created, and there could be reasonable continuity between the internationally appointed officials and the District’s first elected officials. The question of timing of elections was left open; a judgment call would later be made about when the new District institutions were sufficiently mature to withstand the liberalising effect of elections. In the end, elections were not held until four and a half years after the establishment of the new institutions, and the newly democratic institutions remained under close international scrutiny for two years after that. Still that did not appear to be enough, and the District’s elected institutions seem in danger of imminent irreversible fracture at the time of writing (see Chapter Eight). However, Brčko was perhaps the first, and the most concerted, attempt to apply this kind of post-liberal theory in the context of the modern peacekeeping debate. The successes and problems of the Brčko

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project, which this book explores, may to a great extent be seen as a scorecard for post-liberal theory. There have been few other instances where the post-liberal theory of institution-building before elections has actually been applied. This may be because it requires complete domination of the domestic political institutions by the international community. That was possible in Brčko, because those institutions were created from scratch by foreigners; but usually international intervention takes place in the context of pre-existing, albeit dysfunctional, domestic institutions. There are some historical examples concerning occupation of Axis countries by Allied military powers in the aftermath of World War II, when new institutions were created to replace fascist government structures in Germany and Austria. The first public officials were appointed and then elections were permitted later. Another partial recent example of the post-liberal approach is postinvasion Iraq, but it was undertaken in a far more haphazard way and the net result was disastrous. An interim US government administration, called the Coalition Provisional Authority (CPA), ran Iraq from the invasion in April 2003 until June 2004, and did some primitive institution-building.12 On its way out it established an interim domestic executive authority, whose senior officials were chosen by the US administrators. The Iraqi Transitional Government stayed in power until May 2006. In the meantime legislative elections were held in January 2005, to select legislators tasked with drafting a new constitution. A general election was then held under the new constitution in December 2005. But the security situation spiralled downward so rapidly that the country had become virtually ungovernable even by the end of the CPA’s tenure. The new constitution required power sharing between the democratically elected representatives of Iraq’s three principal groups, but there was zero supervision time between enactment of that constitution (October 2005) and elections pursuant to it (December 2005) and thus no opportunity to engender the necessary cooperative political culture to make the new constitution work. At the time of writing the future of Iraq is most uncertain. Because of the negligent manner in which the state-building process was executed, Iraq cannot be seen as sound evidence either way for the post-liberal theory, but Brčko can. (3) Another prescription of post-liberal peacekeeping is that statebuilding is necessarily a very long-term exercise. Using off-the-shelf legislative transplants, changing legal rules can be very quick, and the hope for a rapid exit from post-conflict intervention, found in liberal peacekeeping theory and neo-conservative agendas alike, is necessarily premised upon the assumption that a rapid legal transplant will be immediately implemented. But that never happens. US President Bill Clinton had promised that US peacekeeping troops would leave Bosnia in 12 months; they stayed for over eight years. President George W. Bush likewise foresaw a rapid exit for US troops following the overthrow of Saddam Hussein’s Iraq;

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four and a half years later, in October 2007, there were approximately 170,000 US troops fighting a seemingly endless array of terrorist and insurgent groups. One cannot just write a new constitution mandating that everyone will cooperate, then pull out the troops, because changing a political culture so that new legal rules can thrive takes an enormously long time. At the time of writing the international community’s mission in Bosnia has lasted over 12 years and the country seems as politically unstable as ever. The post-liberal theory of intervention explains why. It will take several election cycles of close supervision to procure a political culture of compromise and consensus-building. In Brčko, with a long lead-in time to elections, the process of politicians learning to cooperate in a multi-ethnic democratic environment only began in 2004 with desperately chaotic endeavours to form a multi-ethnic coalition after the election results. As will be explored in Chapter Seven, it was only with careful international community mediation that it was possible to form any Brčko District government after its first elections. The thought that by the time of the next elections all these problems would have magically evaporated due to a radical change in political culture in the course of just four years seems, on the post-liberal analysis, rather optimistic. Long-term, and often highly sophisticated, international interference with a state’s sovereignty may be necessary to keep a troubled state on the rebuilding track,13 and it will often be no easy task for the international community to extract itself from this level of commitment once it has begun. This book will therefore argue that one of the most important lessons for state-building in a post-conflict environment is that it requires a generation of foreign commitment. That message is probably quite unpalatable to policymakers in western countries, working as they do to short electoral cycles and demotivated by a loss of domestic interest when the problems of a foreign country such as Bosnia disappear from the news headlines. But if it will always be impossible for western governments to stay the course, one ought to ask whether the west ought to engage in statebuilding missions at all, save in the most unusual circumstances. These might include instances where one can be guaranteed a useful result in a tolerably short period of time, or where the country will probably rebuild itself even without external assistance, so the international aid is only reinforcing an inevitable process and can be phased out at will without calamitous consequences. Cases of this kind will be relatively rare. Partition theory Let us now consider the partition theorists.14 Those who write about the merits of partition have often had Bosnia in mind, but they make a general point. Theories of this kind start by distinguishing between ideologically motivated and ethnically motivated civil war. So the theory goes, the former

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kind are much easier to resolve, usually by outright military victory (Vietnam) or stalemate leading to territorial division (Korea). But ethnic civil wars do not admit of such relatively straightforward solutions. When ethnic groups who are intermingled within a portion of territory start fighting one another, they face a security dilemma that can only be resolved by physical separation of the competing populations, which entails widespread population movement. In an ethnic civil war, everyone becomes fearful of attack by their neighbours from the opposing ethnic group(s). Unlike people of differing ideological views, people from different ethnic groups are easily identifiable and their affiliation is clear. They could attack at any time, and they will be unwaveringly loyal to invading forces from their own ethnic group because they can be easily distinguished from the enemy group. No other group will protect them, so any other course would be foolish. In this environment of fear, cross-ethnic political appeals are likely to be drowned out and will not inspire loyalty. As soon as a threshold is crossed at which members of one ethnic group believe that the murder or other abuse of their members is considered acceptable by another group, it becomes intolerable to live amongst them, either because they may kill you (if they are in the majority) or they may collaborate with invading forces (if they are in the minority). A survival instinct motivates this security dilemma and the dilemma becomes impossible to resolve while the populations remain mixed. The only solutions available for either ethnic group are to retreat to an area where one’s own group is dominant, or to expel the members of the opposing group from one’s territory. There can be no security when one’s enemy is living in one’s midst. This security dilemma becomes rapidly reinforced by cultural traits of hatred, fear and avoidance. Thus in every major ethnic civil conflict, there have been large exercises in population displacement, either voluntarily or through compulsion and murder. The evidence of what happens upon partition is not particularly rosy. After partition of India and Pakistan in 1947, about 14.5 million people participated in a massive population exchange to ensure that the new nation of Pakistan would be principally Muslim, but the entire process was managed in an extremely chaotic way leading to vast loss of life. Anticipation of Indian independence from Britain provoked countrywide civil unrest and violent conflict between Hindus and Muslims in 1946, on a scale not unlike contemporary Iraq. A plan was rapidly developed by the British government to partition the country into two states, one majority Muslim and the other majority Hindu. A new viceroy was sent to India to execute this plan in March 1947. Legislation in the British parliament in June 1947 provided that India would become independent on 15 August 1947, whereupon it would be partitioned into two sovereign nations. Sir Cyril Radcliffe was appointed to head a five-man commission to demarcate the partition boundaries (one in the west, through Punjab, and one in the east,

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through Bengal). He arrived in India less than six weeks before the planned independence date and the whole exercise was absurdly rushed. The other members of the commission, representatives of Hindu and Muslim populations, refused to talk to one another, meaning Radcliffe essentially had to make a unilateral decision. The commission’s problems were overwhelming, from insufficient time to prepare a survey, to inadequate specialist knowledge (Radcliffe had never before been to India), to strategically important areas that Radcliffe declined to assign on the basis of ethnic predominance, to lack of representation of minorities neither Hindu nor Muslim. The border was drawn straight through the middle of populated areas rather than around them. Radcliffe left India before the award was even published, and enforcement was left to the parties. As people came to learn where the partition line had been drawn, civilians started mobilising en masse to ensure they were on the right side of the line. It is thought that around 1 million people died in the process, through starvation, disease, exhaustion or slaughter in the course of civil unrest, and the partition ultimately produced at least three wars, in 1948, 1965 and 1971.15 Consider next the partition of Cyprus between its Greek and Turkish populations. The Turkish army invaded northern Cyprus in 1974, after a Greek military coup overthrew the civilian government of the then united island of Cyprus. In the course of the invasion, over one-third of the island was occupied by Turkish forces. Greek Cypriots in the occupied area fled their homes in the face of the oncoming army or were forcibly expelled. Virtually the entire population of the occupation zone (some 150,000 people) fled; virtually all the Turkish Cypriots living in the remainder of the island (some 50,000) fled to the north. Thousands of Greek and Turkish Cypriots were killed. A partition line, called the ‘Green Line’, subsequently divided the island at the farthest occupation point of the Turkish military. This partition has kept an uneasy peace since then, but all attempts to reunite the island have so far failed.16 Finally, the Greco-Turkish War of 1919-1922 tells a similar story of population partition between Greece and Turkey, albeit on a vastly greater scale. During World War I, the Allied powers had promised Greece territorial gains in Turkey at the expense of the collapsed Ottoman Empire, in those areas where the 2.5 million Greeks living in Turkey comprised a majority (principally Western Anatolia and eastern Thrace). To enforce these claims, Greece invaded Turkey in 1919. Greece eventually lost the war and retreated from the territory that is now modern Turkey, but the war was long and bloody, and massacres and ethnic cleansing of civilians were committed by both sides. The animosity between the sides resulted in the ensuing Peace Treaty of Lausanne including provisions for an agreed mutual forced population exchange between the two countries’ territories to eliminate significant ethnic minorities. Approximately 2 million people were expelled from their homes and relocated as a result.

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These partitions all occurred with extraordinary levels of human suffering, as did the partition in Bosnia. Prima facie, then, they might be seen as cumulative evidence against partition. But the partition theorist does not argue that it was good that these partitions took place. Instead his (or her) position is that once partition has taken place, however ugly it is, the only pragmatic policy consequence is to acknowledge it, complete it and redraw political boundaries accordingly. The Lausanne Treaty did just this; the Green Line in Cyprus achieved the same thing; and while extremely bloody at the time, mass population shifts in India and Pakistan resulted in a more or less enduring peace. The subsequent wars on the Indian subcontinent have been the result of negligent demarcation of the boundaries, but interethnic violence within the successor states to the British Raj has been significantly reduced. Thus the partition theorist draws the conclusion that however an ethnic civil war may end, the end state can be stable only when: the opposing groups are demographically separated into defensible enclaves. Separation reduces both incentives and opportunity for further combat…While ethnic fighting can be stopped by other means, such as peace enforcement by international forces or by a conquering empire, such peaces last only as long as the enforcers remain. (Kaufmann 1996) In Bosnia, the communists enforced multi-ethnicity upon Yugoslavia’s feuding tribes for 45 years. But it was not enough. When the power vacuum evaporated after Tito’s death and the collapse of communism, the rivalries resurfaced. Whereas in Bosnia there was significant multi-ethnic mixing and a bloodbath resumed where it had left off in 1945. The policy consequence of partition theory is therefore that in imposing a settlement upon a civil war from outside, one needs to pursue partition of territory into viable mono-ethnic contiguous units. To the extent that population separation has not occurred through murder, terror, expulsion and voluntary separation in the course of the war, the international community must complete the task. It need not be done using methods as brutal as those that occur in wartime, and those displaced can be compensated and provided with new homes. But encouraging return of refugees to hostile territory is foolish. Civil war achieves the separation of people who cannot live together; rather than pursue the hopelessly idealistic course of persuading irreconcilable people to change their minds about one another and find common ground: wouldbe interveners should recognise what has happened as irreversible. Partition theory is deeply unpopular with the majority of international activists. It is perceived as racist, bearing an underlying moral theme that ethnic mixing, principally the product of population movement during the Age of Empire, is unnatural and must be undone. This is unfair. The partition theorist need not make any comment about the desirability of

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ethnic mixing in peaceful societies; all (s)he is committed to is saying that where relations between ethnic groups get so bad that they start killing one another, partition is the only solution. Nonetheless, to many the theory appears monstrous. It is said that it legitimises genocide and ethnic cleansing, wars of aggression and war crimes against civilians. It is also an unwelcome recipe for ‘Balkanisation’ of countries: that is to say, splitting multi-ethnic nations into a multiplicity of ethnically pure mini-states of questionable viability. These criticisms are probably also unfair. The partition theorist’s response is that commission of war crimes, like any criminal act, is a matter for criminal prosecution of those responsible. The partition theorist is not legitimising war crimes against civilians, and where they occur they should be punished. But a sense of moral outrage at the crimes committed in a civil war should not blind the policymaker to the steps necessary to end that civil war once it has begun and those atrocities have been committed. The partition theorist ought not be characterised as immoral or racist. Rather his is a position of profound pessimism about human nature and incentives. Viewing intractable ethnic conflicts through the lens of history, (s)he simply does not believe there is anything that can be done to resolve them short of the most radical medicine of physical separation of violent people. It is all too easy for a natural sense of collective identity to spiral down into animus for others. There is something almost primordial in ethnic identity that mankind is unable to overcome: a preference to associate with others like oneself and to shun difference. By contrast, for the liberal peace-builder and his somewhat more hard-nosed post-liberal counterpart, there is an almost Kantian philosophical optimism that these kinds of hatreds and fears can in time be overcome. People are capable of developing rational modes of cooperation from which everybody benefits. Simplistic emotional hatreds and fears can be overridden by a polity based upon reason. The liberal may well be right about this: such things are in principle possible, as is demonstrated by the many multi-ethnic countries that operate well within a liberal political culture. But what if liberal political society takes centuries to develop, yet can be destroyed in just a few years of internecine war? Once it is gone, is it worth the impossible effort of trying to rebuild it? To this, the partition theorist answers no. He or she will say that attempts to reintegrate formerly warring people in a single state in which they share power is simply naive. The security dilemma – which by the time a civil war is in full swing is entirely rational – cannot be overcome. Interethnic cooperation will become impossible, because each party to any individual potential cooperation agreement will inevitably ask whether that cooperation could be used to oppress or harm him further. Thus representatives of each ethnic group will use every political negotiation as an opportunity to achieve an advantage over the other, and to resolve the security dilemma for that group. With two or more ethnic groups engaging

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in that kind of behaviour, compromise is impossible without radical changes in social psychology that take generations. Only with external enforcement can such cooperation occur. But this implies that external enforcement must be virtually indefinite. And this is a commitment that very few foreign powers are ever prepared to make. Moreover, the phenomenon of ‘Balkanisation’ is an irrational fear. States can be viable even when extremely small. Liechtenstein exists as an entirely feasible modern country with a distinctive national identity and a thriving economy, despite having a population of barely 30,000 and a capital city of 5,000 people. San Marino, Andorra and Monaco are of similar population size and are likewise economically sustainable. Montenegro, the last but one new state to have emerged from the demise of Yugoslavia, has proved itself quite credible as a small middle-income country with a population of fewer than 700,000. Indeed there are eight internationally recognised sovereign states in Europe with a population of less than 1 million.17 Small size can be an advantage, in that political decision-making can be far more streamlined. Indeed there are far more countries in existence now than 100 years ago, principally due to the demise of colonialism. There is no credible argument that the proliferation of smaller states is in some way detrimental to the global polity. It makes multi-party negotiations more complex, as there are more actors with whom to liaise; but small countries have a greater incentive for cooperation with other states, because they are well aware that they cannot survive in autarchy. Thus they are frequently more willing multilateral partners than are larger states. Balkanisation is not something about which we should be gravely concerned if that is what keeps the peace.18 Partition theory is empirically controversial, and a literature has built up over whether the partition theorist’s historical examples are justified or represent a fair cross-section of the outcomes of ethnic civil wars. In particular, it is argued that population separation creates just as many, if not more, grievances than rebuilding a multi-ethnic society and so may itself create great subsequent instability.19 It is also arguably pernicious: even if the theory is right, advocacy of it creates an incentive for nationalist politicians to pursue murderous agendas of ethnic cleansing, because once they commence the slaughter partition theory prescribes they will end up with their own state. Thus it encourages the break-up of otherwise viable states. Nonetheless, it was developed as a direct response to the war in Bosnia once it was at an advanced stage, in which physical separation of the warring parties was widely perceived as the only measure that could stop such intransigent people from continuing to kill one another. Notwithstanding official statements to the contrary, in which the US government described the Dayton Peace Agreement for Bosnia as preserving the territorial integrity of Bosnia and Herzegovina as a single state, it was in truth a partition plan, which recognised the front line between the forces at

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the date of the peace agreement and devolved power to local mono-ethnic government units to the maximum extent practical (see Chapter Two). It was thus described as ‘the partition that dare not speak its name’ (Mearsheimer and Van Evera 1995), subject to some principles of central government that partition theorists rejected as regressive. The principal academic proponent of Bosnia’s partition (Kaufmann 1996) said this, in spring 1996: [T]he [Dayton] agreement, at least nominally, seeks to reconstruct some central government institutions with nationwide authority and a rotating presidency. It also requires all parties to permit the return of refugees. These provisions are undesirable and unenforceable, and should be allowed to die quietly. The procedures provided for compensating refugees for lost property should be followed instead. Another contemporary advocate of partition (Lind 1995) made the following remarks in December 1995, just days after the Dayton Peace Agreement had been signed. If the US tries to provide the muscle for a powerless central government with a complicated multiethnic constitution and little legitimacy among rival populations…or to take sides with one group rather than another in an attempt at ‘nation-building’ by outsiders…the NATO effort in Bosnia is likely to end in failure and humiliation. The US must choose between enforcing a de facto partition of the defunct Bosnian state and a more ambitious attempt to reconstruct a federal Bosnia under a new central government with a complex and probably unworkable constitution. Both these quotes should be kept to the forefront of the mind while reading this book. They were ominous prophecies that ring depressingly true to the veteran of the state-building project in post-war Bosnia. The central institutions of Bosnian government never worked, and they still do not work over 13 years after the end of the war. Refugee return was achieved in substantial numbers only in Brčko, the highly unusual experiment within Bosnia which this book is about. The Dayton Constitution proved quite ruinous when any attempt was made to implement it. To the extent that multi-ethnic institutions have been created in Bosnia, they seem perilously fragile and unsustainable once international community intervention ceases. To their credit, the partition theorists predicted these problems from the outset. Moreover they argue, with some force, that the international community in post-war Bosnia has been engaged in an intellectual schizophrenia about partition. All the peace plans for Bosnia were partition plans, including the Dayton plan finally signed in December 1995. It was widely understood at the time that separating the parties into their own

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mini-states, in which they would have maximum autonomy over their own affairs and a minimum of encroachment by the opposing ethnic groups, was essential to achieving peace and securing the consent of all three sides. But by 1998, the international community had committed itself to a broad state-building project, in which state laws and central institutions would be created from scratch and the local, highly federalised system of government anticipated by Dayton would be undermined. At what point, then, was the insight lost that partition would be best? And was it a good thing that it was? Writing this in early 2008, the answer is very unclear. In Brčko, the subject of the most focused and successful effort in the entire country to reintegrate, this question reaches its zenith. The conclusion of this book is that multi-ethnic Brčko is about to collapse. Were the partition theorists right? The arguments of partition theorists will haunt this book, and the efforts of the international community in post-war Bosnia must be measured against the alternative of partition that was rejected by the international community at some point between December 1995 and mid1998. To the extent that the partitionists’ pessimistic predictions have turned out to be true, we must ask whether they were right all along or whether it was due to incompetence, lack of commitment or some other factor that Bosnia has ended up being the catalogue of failed state-building projects that it is today. Morally unattractive as partition seems to be at first glance, so much in the experience of the international community in postwar Bosnia suggests that, for Bosnia at least, partition might have been the right approach. At least one thing is clear: if a policy of reintegration driven by the international community is to be successful, it will be a matter of decades rather than years before foreign intervention can be considered complete. Given a limited period of time, partition may be the only realistic option. International organisations Government in post-war Bosnia has been run by an international organisation called the Office of the High Representative (OHR), a UN specialist agency established by the Dayton Peace Accords that ended the war. As shall be seen in Chapter Four, OHR granted itself extraordinarily broad powers to supervise every public institution in the country, to appoint and remove public officials (even if democratically elected) and even to invade people’s private lives, by freezing their bank accounts and banning them from holding positions in political parties. It also took upon itself to block media, including television and radio, which it considered to be disseminating unacceptable propaganda. None of this took place within an accountable legal framework; there was no way of challenging the decisions and actions OHR took, which were made behind closed doors

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and without the benefit of any public scrutiny of the decision-making process. OHR set its own rules in deciding how and when to act and changed them or broke them at will. Successive heads of the organisation had radically different ideas about when and how to intervene in the country’s domestic affairs; their visions went mostly unchecked and OHR’s actions thus became capricious. Bosnia became an absolutist dictatorship. But this power was not wielded by the President of Syria or the Politburo; it was exercised by the UN, in the name of enlightened post-war statebuilding. It should already be obvious to the most casual reader that this model embodies extraordinary dangers, and much of this book is about the problems it caused. But those dangers seemed not to occur to the officials within OHR, and the international community as a whole went along with the international dictatorship of OHR without significant comment. This in itself is remarkable, and should cause us to pause to consider why OHR’s conduct was so pathological. This is an issue on which some of the preexisting literature on international organisations may shed light. In many ways OHR displayed faults ubiquitous in larger international organisations, including a culture of frustrating bureaucracy, suppression of dissident ideas, political interference behind the scenes in what should be neutral policy decisions by the sponsoring states’ embassies and foreign affairs ministries, and fixation with internal norms at the expense of sound external policy. Many of these failings derived from its status as a bureaucracy and its lack of accountability, features it shares with other international organisations. The perverse and inefficient behaviour of international organisations on account of these features has already been catalogued in considerable detail.20 To understand the background to these criticisms, one needs to be acquainted with some of the more theoretical distinctions drawn in the academic literature on international relations. International relations theorists have traditionally divided themselves into two camps that have come to be known as realism and liberalism. It is impossible to characterise these positions briefly while doing full justice to the debates between them, as each movement has spawned a series of variants under a range of abstruse titles.21 However, the broad difference can be stated fairly simply. Realists perceive the international order as an anarchic competition between self-interested states, with the possibility of cooperation between states impossible save in the short term and where it is in all states’ self-interest.22 By contrast liberalism, associated in the first instance with US President Woodrow Wilson, sees states as having moral preferences that may be distinct from pursuit of their own self-interest, and those preferences may motivate their conduct. This opens the possibility of at least some states (typically liberal democracies) entering into mutual agreements to promote their common values, including the formation of international organisations to execute altruistic policies. International law

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and international organisations can therefore be a good thing and make a real difference. A third school of thought, sometimes called constructivism, sits uneasily astride this debate, maintaining that ideas other than the pursuit of selfinterest may influence outcomes in international relations.23 It is not axiomatic that states will pursue their own naked self-interest; other principles, to which they have ideologically committed themselves, may shape the goals they pursue. However, use of the word constructivism may imply neutrality about whether that influence is positive (as liberals maintain, who will assert concepts of human rights and international law as shaping the behaviour of states and international organisations), or negative, because the ideas created by international relations discourse turn out to be perverse. Negative constructivism finds its origins in the sociology of Max Weber, who turned the Marxist view of economics on its head. Whereas Marx had thought that economic forces determine all other changes in society, Weber saw other social forces, such as religion and the growth of bureaucracy, as affecting economic development. By analogy, the ideologies promoted by international organisations may constrain the economic anarchy of competition between nation states. Two recent academic criticisms of international organisations draw from these theoretical debates: from realism in one case, and from a negative form of constructivism in the other. Both are highly relevant to Bosnia. (1) The first criticism, associated with realism, posits that international organisations are in some sense irrelevant. Their actions make no difference to international relations, because their behaviour will merely reflect an amalgam of short-term interests of the states that agree to form them. Whatever rules international organisations operate under will be altered or subverted when the interests of the powerful states underlying them change. The consequence of this theory is that international organisations are epiphenomenal – they have no causal influence upon the world events over which they purport to preside. World events cause reactions by powerful countries, and some of those reactions involve the creation of international organisations. But international organisations are only children of those events, not real actors within them. They are created out of the balance of power between the principal powerful nations of the world, rather than affecting that balance of power. The charge against them is thus that they do not make any difference to outcomes: ‘institutions cannot get states to stop behaving as short-term power maximizers’ (Mearsheimer 1995). They do not have their own independent policy-making personality; they will do whatever the most powerful member states that fund them and support them tell them to do. International organisations are only a shroud of international legitimacy for the exercise of powerful states’ foreign policy. Thus the difference between a US colonial occupation of Bosnia and military occupation and dictatorship under the auspices of OHR

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(which until 2006 the US to a great extent controlled, because it was the biggest contributor to its budget and the greatest contributor of foreign peacekeeping troops) is solely one of moral perception. The literature on this topic has had large multi-national international organisations in mind, such as the United Nations, the World Trade Organisation (WTO) or the World Bank. However, the general point may be applied by analogy to the work of a smaller organisation specific to one country, such as OHR. OHR was always a creation of its funding commitments. The relative size of the financial and military contributions by the various European powers and the United States very much determined policy influence within the organisation’s walls. Russia, although formally a participant, never contributed significant resources and its influence in the organisation was minimal after the early years when it maintained some troops in Bosnia. By contrast, the United States contributed tens of thousands of peacekeeping troops in the early years and thus had an enormous say. Although in theory the European Union appointed the High Representative (the head of the organisation), in practice every High Representative would need US approval. A High Representative who lost the support of the US embassy would soon be out of a job, as Chapter Eight describes. Moreover, the muscular dictatorial role OHR came to adopt from December 1997, which made it possible for the international community to push a centralising state-building agenda, was at the instigation of the US government (see Chapter Four). And when the US government tired of intervention in Bosnia, OHR and the country’s central government promptly peeled open (see Chapters Seven and Eight). Ultimately the interests of the various foreign powers in international intervention in Bosnia were always relatively weak and were mildly inconsistent. The principal US interest was to avert mounting domestic criticism of inaction over a humanitarian catastrophe. There was also a lesser interest, in the face of American concern over the rise of fundamentalist Islam, to prevent the emergence of an exclusively Islamic state within Bosnia. Part of the American agenda for promoting a unified state was the thought (however misconceived) that a mixed Bosnia would entail watered-down Islam. The contemporary European interest, by contrast, was far narrower: to secure return of the vast number of Bosnian refugees that were creating political and economic problems for a number of countries in continental Europe. Subsequently an interest arose in integrating the western Balkan region into the European Union, but that was also a weak interest given the prevailing Brussels view that no country should be forced to join if it is not ready for the necessary political and institutional reforms that precede membership. Finally, the Russian interest was to keep Slobodan Milošević, President of the rump Federal Republic of Yugoslavia and a Russian ally, in power after his country had collapsed under the weight of UN sanctions. Most of these interests rapidly faded:

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the media gaze averted its attention from Bosnia, the refugees returned and Milošević was abandoned as a hopeless liability after a subsequent repetition of Bosnian atrocities in Kosovo. A lingering preference remained to ensure that Bosnia would not be a source of renewed conflict, but the country’s impoverishment through war rendered the risk to regional instability relatively minor. The absence of strong foreign interests in Bosnia led to a diversion of attention from the international community’s projects in the country, and this lack of focus contributed to OHR’s dysfunctionality. The important practical lesson to learn from this criticism of international organisations is that they cannot operate in a vacuum. Being funded by foreign governments and their most senior officials being appointees of those governments, they need a clear policy direction and mandate from foreign capitals. For peacekeeping missions, that direction will only be forthcoming when there are strong foreign interests in the host country’s successful reconstruction. Without those interests, they will flounder, directionless, in a sea of bureaucratic petulance.24 You cannot do state-building if you don’t care. (2) The constructivist argument against international organisations is that to the extent they do make a difference to policy, that difference is detrimental. This argument is, at least at a theoretical level, inconsistent with the realist argument that international organisations make no difference or are just a hamstrung amalgamation of competing interests. But notwithstanding the two perspectives’ mutual theoretical hostility, there is insight in both of them. The constructivist’s case draws on the theory of bureaucracy of German sociologist Max Weber. It observes that international organisations create their own rules and procedures, which have a rationality all their own and which create distinct sets of aims. The organisation then inevitably pursues those aims notwithstanding the dictates of its paymasters. Because the lines of accountability to the states that formed the organisation are imperfect, the organisation’s aims may over time turn out to be quite different from those the founding states wish to pursue. Most notably, an internal legal culture may prevail that shapes the way the organisation will act, even if there is no external compulsion for it to act that way (Barnett and Finnemore 1999). That culture may define and redefine itself perennially, without restraint, and become quite irrational. The Office of the High Representative became severely handicapped by problems of this kind. After OHR was granted broad legislative and executive powers in December 1997 (see Chapter Four), all manner of arbitrary internal rules began to take shape about how the organisation could or could not use its power. It started to see itself as the final authority in interpreting the peace agreements which created it and thus it could set its own mandate. Those members of the international community outside the country, cocooned in the foreign affairs departments of governments around the world, knew little of the complex situation on the ground in

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Bosnia, or of the detailed and opaque legal and political work in which OHR was engaging. They were thus reliant upon OHR to explain what the organisation was doing, where the country was going and for OHR’s assessment of its own performance. OHR could therefore decide what it saw fit to involve itself in and it suffered from inexorable mission creep. In ebbs and flows, OHR would involve itself in matters of enormous political importance and micro-management of low-level detail. The goals of the organisation slipped from one project to the next as different High Representatives were appointed, mostly with relatively short tenures, each espousing different philosophies and agendas. Because of staff turnover both within the organisation and amongst foreign services in western capitals, continuity of OHR’s agenda was limited. Because it evaluated itself, OHR became immensely arrogant. It decided that it had a unilateral right to interpret the Constitution of Bosnia and Herzegovina and all legislation, howsoever passed. It decided that it had a unilateral mandate to instruct all public officials in the proper execution of their duties. It became the singular authority on every issue, from legislative drafting to economic development to political progress to judicial reform to criminal justice to taxation to property ownership to public administration reform. But the organisation simply did not have sufficient expertise to dabble in all these areas. It thus blundered into policy thickets in which it was not competent, and once it engaged with a topic it frequently failed to follow through on sophisticated policy problems that required far more effort than it was prepared to give. OHR found itself prone to a catalogue of negligent errors and incompetence that went unrectified due to its unaccountability. Moreover, the lack of legal or political accountability rendered the organisation prone to egregious abuses of power, and this book is replete with anecdotes and instances of wrongdoing by international officials. The explicit power of the organisation was such that it felt it could publicly declare that it was removing public officials without any right of review or due process, it could refer to secret and unchallengeable intelligence reports as the explanation for the decisions it took, it could impose legislation over the wishes of democratically elected parliaments without even giving those parliaments a chance first to consider the legislation, it could freeze the bank accounts of private individuals because it merely suspected them of abetting fugitives, and it could revoke the identity and travel documents of people it suspected of wrongdoing without an order of the court and without even alleging that they had committed a criminal offence. In short, the arrogance of OHR was such that it could publicly admit to conduct which by all international standards was a flagrant violation of the most fundamental human rights. Even the most brutal third world dictators usually have sufficient decorum to hide their human rights abuses behind the veil of supposedly fair institutional procedures, but the Office of the

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High Representative apparently did not feel so restrained. OHR must count as one of the most dysfunctional international organisations on record. The experience of the Office of the High Representative in Brčko serves as a partial counterexample to the account described above. As the story elaborated in this book will explain, the Brčko branch of the organisation developed on a track entirely parallel with its Sarajevo-based parent. This organisation had a much clearer and more detailed mandate, and its understanding of its purpose began to fade only in late 2006. It was slightly more accountable, although still not perfectly so: it only really answered to one government, that of the United States, but that government took a closer interest in the office’s affairs than a committee of foreign government representatives did in the activities of OHR as a whole. Hence while the US State Department retained an interest in what the office was doing, there was a genuine sense of political accountability. This, combined with a self-imposed restraint in the face of fiendishly difficult domestic political conditions that constantly threatened to erupt into violence, helped the office to maintain a sense of institutional discipline. However, once the State Department lost interest, the same ailments that cursed the organisation as a whole began to creep into the international organisation running Brčko. The story of the rapid collapse of that office is one of the most intriguing details in the story of post-war international intervention in Bosnia and it illuminates much of the theoretical narrative about the potential failings of international organisations set out in this chapter. For now, this chapter comprises sufficient theorising and generalisations about both the peculiar country of Bosnia and the curious organisation that has run it since 1996. His (or her) appetite having been whetted with allusions to the radical and the unusual, it is hoped that the reader will now want to delve into the fascinating detail. For that purpose it is with an introduction to the history of Bosnia, and to the anomalous town of Brčko, that we should begin.

2 BOSNIA AND BRČKO

To understand Brčko, one must understand the country of which it is part, Bosnia and Herzegovina. This country has had a long, tragic and violent history, in which external domination by foreign powers has played a recurrent role. It is a very unusual place. Much has been written elsewhere about Bosnia’s past (e.g. Malcolm 1996). Here the barest précis will suffice, so the reader may begin to comprehend the extraordinary nature of the nation we are studying. Bosnia is a remote, mountainous country whose borders have shifted repeatedly over the past 600 years, and in that period it has always been home to a multiplicity of Slavic peoples of different religions. In the medieval era it was a Christian kingdom in which the heterodox Bosnian church was predominant.1 The country fell to the Ottoman Empire in 1463 and from then it was dominated by a series of foreign powers in an uninterrupted chain of succession. During the Ottoman era Slavic Muslims populated the country, a product of immigration and conversion; Catholics and orthodox peoples cohabited in the country as significant minorities. As the Ottoman Empire gradually collapsed during the course of the nineteenth century, Bosnia became increasingly unstable. Occupation and control over the territory of Bosnia and Herzegovina was ceded to the AustroHungarian Empire at the Congress of Berlin in 1878, although the territory was to remain formally part of the Ottoman Empire. At that time borders of Bosnia and Herzegovina were set that correspond to the republic’s boundaries within the post-World War II socialist period and the modern state’s contemporary boundaries. Austria-Hungary sought to administer Bosnia as a multi-ethnic colony, but at this time Croatian and Serbian nationalist movements grew, seeking independence from Austria-Hungary and creating further instability amongst the Croat and Serb populations of Bosnia. In 1908 Austria-Hungary formally annexed Bosnia and Herzegovina from the Ottoman Empire, creating a diplomatic crisis, a wave of nationalist unrest from Serbs within the province and protests from Serbia that had sought the province as its own. Serb nationalist sentiment culminated in the assassination of Archduke Franz Ferdinand of Austria in

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Sarajevo on 28 June 1914 by a Serb extremist called Gavilo Princip, triggering the outbreak of World War I.

1. The province of Bosnia within the Ottoman Empire at the end of the sixteenth century. It comprises several sandžaks (administrative subdivisions) and includes much of what is now Croatia and parts of what is now southern Serbia. Bosnia comprises the westernmost extent of the Ottoman Empire, bordering the Republics of Venice and Ragusa (Dubrovnik) and Habsburg Croatia.

There was little significant fighting in Bosnia during World War I. At the end of the war, the territory of Bosnia was incorporated into the newly formed Kingdom of Serbs, Croats and Slovenes, thereafter renamed the Kingdom of Yugoslavia (literally the Kingdom of Southern Slavs). In an attempt to defuse nationalist sentiments, the internal administrative boundaries of the Kingdom were redrawn in 1929 as banovinas, administrative regions deliberately demarcated without reference to historical boundaries or ethnic composition. Bosnia was chopped into several pieces in that process, shared between the Sava, Vrbas, Drina, Littoral and Zeta banovinas (with regional capitals in Zagreb, Banja Luka, Sarajevo, Split and Cetinje respectively).2 This attempt to eliminate historical ethnic divisions by redrawing political boundaries was shown to have failed radically upon the onset of World War II. The Nazis invaded Yugoslavia on 6 April 1941 and ceded the entire territory of Bosnia to an independent state of Croatia sympathetic to the Nazis and run by a government headed by the Croatian

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Ustaša (fascist) movement. During this period Bosnia descended into a bloodbath. The Ustaša slaughtered Bosnia’s Serbs and the Nazis slaughtered Bosnia’s Jews.3 A Serb resistance movement called the četniks was established, supposedly to fight the Ustaša, but they also slaughtered Muslims. The Communist partisans of Josip Broz Tito became the principal multi-ethnic resistance to the Ustaša regime; Tito himself was a Croat.4

2. The Kingdom of Yugoslavia, divided into banovinas, in 1929. Bosnia is not a recognisable political subdivision, its territory being split between five banovinas.

The partisans prevailed against the Ustaša and at the end of World War II Tito established the independent Socialist Federal Republic of Yugoslavia (SFRY) with six ‘Socialist Republics’ within its boundaries, of which the Socialist Republic of Bosnia and Herzegovina (SRBiH) was one. (The others were Serbia, Croatia, Slovenia, Montenegro and Macedonia.) In its early years the SFRY was essentially an autocratic state, run by Tito. Perhaps anticipating that a highly centralised state governed by the will of one man could not outlast his death, Tito pushed through constitutional reforms to the SFRY in 1974, granting significant autonomy to the Republics. Each Republic would have its own president and parliament (albeit at that time without free elections) and there would be a collective Federal Presidency within which each Socialist Republic (and two autonomous regions within Serbia, Vojvodina and Kosovo) would have a single vote. Yugoslavia was a relatively prosperous country during this period, mostly due to Tito’s wily behaviour in playing off the two sides in the Cold War and receiving aid and investments from both. In part its wealth also derived from arms exports. Tito was the founder of the non-aligned

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movement of states declaring themselves independent of both the USA and the USSR. Yugoslavia built upon a burgeoning arms industry, selling weapons to its fellow states within the non-aligned movement (ESI 2004a). As a result, Yugoslav citizens enjoyed significantly higher standards of living than their counterparts elsewhere in communist Eastern Europe, and enjoyed the luxury of travelling freely abroad. Westerners could also freely visit Yugoslavia, in contrast to the rest of the Eastern bloc. This contributed to significant tourism revenues in the country, also supporting the economy. However, Tito’s state borrowed heavily to fund its citizens’ welfare and this was one of the principal causes of its economic decline after Tito’s death in 1980. Within the SRFY, SRBiH was a relatively poor republic, being predominantly rural and with only one city of significant size (Sarajevo). Its transport and infrastructure connections were worse than elsewhere in the SFRY, as it was a mountainous territory with no main highways. However, Tito developed significant secondary industry within SRBiH, much of which was linked to Yugoslavia’s arms trade. Tito had placed many arms manufacturing facilities in Bosnia because it was the only Socialist Republic not to border a neighbouring state. He was paranoid about invasion by his neighbours, having fallen out with both Stalin and Enver Hoxha, the leader of Communist Albania. In the event, the SFRY period was the wealthiest Bosnia had experienced in its history. After the 1992–1995 war in Bosnia, many people would talk of the halcyon days under Tito, and there was great nostalgia about the Communist era. But it is not clear whether Bosnia was ever really a financial success story. Its backward, predominantly rural economy was heavily subsidised under the Yugoslav system of federal government by financial redistributions from the wealthier republics such as Slovenia and Croatia. One of the principal problems for a newly independent Bosnia would be forging a sustainable economy without communist era subsidies; after the war, many people would struggle to understand why pre-war industries were no longer sustainable, but the principal reason was that the sizeable pre-war subsidies were no longer available. Economic reconstruction would be made all the more challenging by the near complete cessation of legitimate economic activity during the war, and the almost total destruction of economic infrastructure. Finally, the military gearing of the economy severely hindered it in the post-war era. With the Cold War over, there were no more foreign markets for a Yugoslav armaments industry. Moreover, in an attempt to hold the SFRY together through economic means, Tito had deliberately located complimentary facilities in the arms production process in different Socialist Republics. After the war, these facilities could no longer cooperate due to political divisions (ESI 2004a).

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3. Map of the states existing in March 2008 that previously comprised the Socialist Federal Republic of Yugoslavia. The six former Socialist Republics, Kosovo (which declared independence from Serbia in February 2008 but whose independence has not been universally recognised) and Vojvodina, the remaining autonomous province within Serbia, are shown.

After Tito’s death the SFRY experienced gradual but inexorable political and economic decline, fomenting latent nationalist sentiments previously held in abeyance by strict communist policies of suppression.5 As economic problems created widespread dissatisfaction in both Yugoslavia and the rest of Eastern Europe in the 1980s, maintaining the political unity of the country looked increasingly unlikely. A brief moment of optimism was experienced when Sarajevo hosted the Winter Olympics in 1984, but it was not to last, and the immediate trigger for the break-up of Yugoslavia was amendments to the constitution of the Socialist Republic of Serbia, passed in March 1989 by Slobodan Milošević, at this time leader of the Communist Party of Serbia. These amendments revoked the autonomous status of the two Serbian provinces, Kosovo and Vojvodina, with cal-amitous consequences. A system of power sharing between the republics existed in SFRY, in which there were eight votes in a collective federal Presidency, one vote held by each of the six republics (Serbia, Slovenia, Croatia, Bosnia and Herzegovina, Macedonia and Montenegro) and one held by each of the

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two autonomous provinces within Serbia. The most important consequence of the 1989 constitutional amendments was that Serbia thereafter effectively appointed the Kosovan and Vojvodinan members of the Presidency and thus controlled three out of the eight votes. Montenegro was generally a loyal supporter of Serbia, sharing the common religious bonds of Serbian orthodox Christianity. With Montenegro voting with Serbia, Serbia could dominate the Yugoslav political system. The fear of Serb domination haunted the other Republics, who started planning for secession from the Union. An important turning point came at a meeting of the League of Communists of Yugoslavia, the principal assembly of the Communist Party, on 20 January 1990. At that meeting, the Slovenian delegation, supported by Croatia, demanded a looser Federation and walked out. When that occurred, most political commentators realised that the disintegration of Yugoslavia was inevitable. In line with the collapse of single-party communist rule throughout the rest of Eastern Europe, Yugoslavia held its first multi-party elections since the end of World War II on 18 November 1990. In Croatia, nationalists won the elections and on 22 December 1990 amended the Constitution of the Republic of Croatia to remove collective rights from Serbs and other minorities in the Republic. On 25 June 1991 Slovenia and Croatia simultaneously declared independence, triggering assaults by the JNA (Yugoslav National Army, which was Serb-dominated) on both countries. Although the assault on Slovenia lasted only ten days, the war in Croatia would be extensive and brutal, and continued until a ceasefire on 20 January 1992. Upon the ceasefire, Serb forces occupied a significant proportion of what had been the Socialist Republic of Croatia under the SFRY. An area of eastern Slavonia, the area of north-east Croatia closest to the border with Serbia, was also in the hands of Serb forces, including the town of Beli Manastir (in the far north-east, close to the border between Serbia, Hungary and Croatia) and the city of Vukovar. Vukovar, on the river Danube border between Serbia and Croatia, had a mixed Croat and Serb population and had been the subject of a devastating Serb siege. Serb forces also held a significant area of Croatia to the west and north west of Bosnia, in what came to be known as the self-declared Republic of Serb Krajina (RSK). The capital of the RSK was Knin, but it took in the towns of Gračac, Plitvice and Petrinje. The RSK was never internationally recognised and suffered total economic collapse, surviving only until a surprise Croatian offensive, ‘Operation Storm’, to expel Serb forces from the Krajina region in August 1995. Of all the six Yugoslav republics, Bosnia and Herzegovina was the most ethnically diverse. In Bosnia and Herzegovina, the winning coalition from the November 1990 elections comprised three nationalist parties, the Party of Democratic Action (SDA – Bosniac), the Croatian Democratic Union (HDZ) and the Serb Democratic Party (SDS). However, the coalition was a

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paltry affair from the start, the parties within it having diametrically opposed agendas. There was only one significant political issue at the time: whether the Socialist Republic of Bosnia and Herzegovina should break away from the Socialist Federal Republic of Yugoslavia, and if so on what terms. SDA and HDZ both pushed for independence of the SRBiH from the SFRY mother state. But HDZ’s vision of independence was very different from that of SDA. SDA wanted a unified state comprising the entirety of the territory of the SRBiH, but HDZ saw parts of the territory splitting off and joining an independent Croatia, particularly those regions with a significant number of Croats (including pockets in the north and central Bosnia, and much of the south west part of the country, Herzegovina.) By contrast, SDS remained committed to the SRBiH staying within a Serbia-dominated SFRY.

4. Map of territories held by Serb forces in Croatia as of January 1992. The selfdeclared Republic of Serb Krajina (RSK) is the highlighted area to the west and north west of Bosnia and Herzegovina.

Unsurprisingly, these three parties did not stay in coalition for long. The Serb members of the SRBiH parliament abandoned the central parliament building in Sarajevo on 24 October 1991, and formed the ‘Assembly of the Serb People of Bosnia and Herzegovina’ in Pale, a majority-Serb skiing village approximately 15 miles north east of the capital. This Assembly subsequently proclaimed the creation of the ‘Serbian Republic of Bosnia and Herzegovina’ on 9 January 1992, which was renamed ‘Republika Srp-

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ska’ (RS) in August 1992. In parallel, the Croat members of parliament declared the existence of the ‘Croat Community of Herzeg-Bosna’ on 18 November 1991. (It subsequently declared itself an independent state called the ‘Croat Republic of Herzeg-Bosna’ on 28 August 1993, in the middle of the war, but renounced its claim to sovereign status in the Washington agreement between Bosniacs and Croats of 1 March 1994, of which more below.) After the Serbs had walked out of the SRBiH parliament, that parliament passed a resolution to hold a referendum on the independence of SRBiH from SFRY. That referendum was held on 29 February and 1 March 1992, but the vast majority of Serbs boycotted the referendum on the instructions of the Bosnian Serb political leaders. The turnout in the referendum was 63.7 per cent, just less than the two-thirds turnout required by the Constitution. 99.43 per cent of those who did vote, voted in favour of independence. Independence was declared by the SRBiH parliament on 5 March 1992 notwithstanding the failure to obtain the requisite supermajority, and a new sovereign state entitled the ‘Republic of Bosnia and Herzegovina’ (RBiH) was proclaimed. Germany was the first to recognise the new state, on 6 April 1992. In the meantime, Serb forces, consisting of Yugoslav National Army (JNA) units, units of the VRS (the Army of Republika Srpska) and Serb paramilitaries, commenced hostilities in eastern Bosnia and Herzegovina in March 1992 with the aim of preventing the secession, or alternatively securing territory for the RS from the RBiH. Thus had the war begun. The town of Brčko A few words should now be said about the history of Brčko. Brčko is a medium-sized town located on the south bank of the River Sava in the north east of Bosnia and Herzegovina. At this point the river demarcates the international border with Croatia and there is a river bridge border crossing in the centre of town. The border with Serbia is about 25 miles to the east. The first historical record of Brčko was as a village in Turkish documents dated 1548, after the Turkish army had occupied Posavina (meaning ‘the region around the Sava’) in 1512. The River Sava demarcated the boundaries between the Ottoman Empire (to the south) and the Austro-Hungarian Empire (to the north). The town remained under Ottoman rule until 1878, after which Bosnia and Herzegovina came under Austro-Hungarian occupation following the Congress of Berlin that oversaw the dismemberment of the Ottoman Empire. Brčko developed rapidly as a trading and industrial centre of the Austro-Hungarian Empire during the nineteenth century, principally due to its port, and it has always been wealthy compared to other towns of a similar size in Bosnia.6 It came within the territory of the Kingdom of Yugoslavia after World War I (becoming part of the Drina banovina – an administrative unit within the

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Kingdom - in 1929). After World War II it fell within the Socialist Republic of Bosnia and Herzegovina. Throughout its history, as a border town it retained a distinctive multiethnic character. The 1991 census gave the Brčko opština (SRBiH municipality, including both the town and outlying villages and rural areas) a population of just under 90,000, of which 44 per cent were Bosniac (Bosnian Muslim), 25 per cent Croat and 21 per cent Serb.7 The remaining 10 per cent, who classified themselves as ‘other’ or ‘Yugoslav’ (for the most part the children of mixed marriages) seem to have been forgotten in the post-war period, in which rigid identification with one or another group has become compulsory. In the Brčko municipal elections in November 1990, a multi-ethnic successor to the Communist Party came top. The so-called ‘League of Communists–Party of Democratic Change’ (later to become the Social Democratic Party – SDP) won 27 per cent of the votes, the most of any party. However, nationalism had already so infected the Bosnian body politic that they could find no coalition partner. The three nationalist parties, the SDA, HDZ and SDS won 26 per cent, 22 per cent and 14 per cent of the vote respectively, and in parallel with the government at the SRBiH level, formed a ruling coalition in the Brčko area (Kadrić 1999).

5. Map of Bosnia and Herzegovina in 1991, showing majority (or plurality) ethnic group by municipality. The location of the Inter-Entity Boundary Line (IEBL), effectively the December 1995 ceasefire line that divided the country into two, is superimposed.

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The three and a half year war in Bosnia and Herzegovina, from March 1992 to October 1995, was a hideous affair, characterised by wanton disregard for human life, deliberate mistreatment and murder of civilians, crude forms of warfare and widespread criminality. The war had the dubious distinction of introducing the phrase ‘ethnic cleansing’ into common parlance. Ethnic cleansing, practised to varying degrees by all sides, consisted of the forced expulsion, or killing, of other groups from one’s own territory. It was conducted remarkably effectively: by the end of the war the entire country had been divided into mono-ethnic bantustans8 in which minorities never comprised more than 5 per cent of the population of any given area. To the outside world, the war seemed to be driven by politicians tapping into blind and uncompromising nationalist sentiment. Bosnia’s wartime political leaders exhibited great readiness to sacrifice their own peoples and others for self-interested purposes. The first six months of the war were particularly bloody, with an estimated 70 per cent of the 100,000 fatalities in the war occurring by September 1992 (Tabeau and Bijak 2005). But stalemate subsequently ensued and from the middle of 1993 the war seemed unwinnable by any side. However, no attempts were made by the warring parties to reach an armistice and every attempt at international mediation was rebuffed. Atrocities were so appalling and widespread that the United Nations established the first war crimes tribunal since the end of World War II, the International Criminal Tribunal for Yugoslavia (ICTY). Instrumental in the war continuing for as long as possible was the desire of war profiteers, connected to the political and military elites, to continue amassing wealth from prolonged conflict (UN 1994). Fortunes were amassed from trading in oil, cigarettes and other basic commodities. Vast premiums could be charged when freedom of movement was so restricted and ordinary supplies were short. Likewise, sanctions busting was immensely profitable. The UN Security Council had imposed an arms embargo on the entire former Yugoslavia for the duration of the conflict (UN 1991a) which, by restricting supply to illegitimate sources in a period of high demand, created enormous profit margins for smugglers. Reports of cynical wartime behaviour in pursuit of profit are legion, and truth is very difficult to distinguish from allegation. The opposing sides’ militaries continued trading with each other throughout the conflict, allowing the war to be fuelled indefinitely by profit incentives. Throughout the war, until Operation Storm in August 1995, Serb forces besieged the city of Bihać, in north western Bosnia, which was held by Bosniac forces. During the siege, Serb armed forces in the Bihać area sold the besieged Bosniac forces ammunition with which to continue resisting the Serb siege, in exchange for gasoline that the Serb forces were short of at the time. In Mostar, Serb forces sold Bosniac forces shells with which to bombard Croat positions, but came to an arrangement whereby the Serbs would

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actually fire the shells at the Croats on the Bosniacs’ behalf, to ameliorate ‘delivery problems’. Soldiers fought on mindlessly while the army commanders lined their pockets.

6. Map of the territory claimed by the Croat Community of Herzeg-Bosna (shaded dark), later the self-declared Croat Republic of Herzeg-Bosna. Brčko is included, but the Croats, comprising only one-quarter of the Brčko population, never seriously expected to keep Brčko in any final settlement.

7. The location of the Brčko opština, set against a map of Bosnia and Herzegovina showing the post-war configuration of the Entities. The RS is to the north and the east, the Federation to the south-west and centre.

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The war in Brčko began a little later than elsewhere in Bosnia, as the town’s status was tied up with broader strategic issues. War in Croatia had begun in June 1991, as Croatia declared independence from the SFRY and Serbia used its dominance over the Yugoslav National Army (JNA) in an attempt to prevent its secession. Fighting was focused in the areas of Croatia with large Serb minorities, being the Krajina region (south and south east of Zagreb, west of Bosnia and Herzegovina) and eastern Slavonia (the area immediately north of Brčko, encompassing the Croatian cities of Vukovar and Vinkovci). Brčko was the site of a large JNA barracks. At this time the Bosniac and Croat JNA troops in the Brčko barracks refused to fight against the Croatian secessionist forces in eastern Slavonia. The Serb Democratic Party (SDS) soon realised that Serb control of Brčko would be essential for the Serb military effort once war in Bosnia began, due to its strategic significance. Serb populations within Bosnia were principally concentrated in two places: near the border with Serbia, in eastern Bosnia, and around the city of Banja Luka, in north-western Bosnia. A corridor between these two territories would have to be held, and that corridor would run through Brčko. Anticipating war, the SDS prepared plans for ethnic cleansing of Brčko town to expel its Bosniac and Croat majority population (Kadrić 1999), and the barracks became increasingly populated by irregular Serb militias. By the end of 1991, the JNA had taken all the strategic military positions around town. Fearing the worst, Bosniac and Croat political leaders formed their own defence forces in Bosniac and Croat villages to the south of Brčko town. The SDS proposed a plan for ethnic partition of Brčko, which gave the Serbs a corridor through the Brčko area including the entire industrial and commercial centre of the town. This plan was rejected by the Bosniacs at a meeting of the municipal assembly on 27 April 1992, which was the last time the Brčko municipal assembly would meet before the war. The war had already begun elsewhere in Bosnia and Herzegovina, with violent conflict beginning throughout the country during the month of March, and hostilities would commence in Brčko on 30 April 1992. At the start of the war in Bosnia and Herzegovina, battle lines had been drawn between Republika Srpska and the territory of the (then) Bosniac and Croat allies, later to be called the ‘Federation of Bosnia and Herzegovina’ (FBiH or just the Federation). The RS was a horseshoe-shaped territory, incorporating a region in northern Bosnia from the border with the Republic of Serb Krajina to the west, through Banja Luka, to Brčko, and a region in eastern Bosnia adjacent to the border with Serbia. The horseshoe thus met in the middle in Brčko. Bosnian Serb forces initially captured approximately 70 per cent of the territory of Bosnia and Herzegovina, but were unable to occupy the principal cities and industrial centres of Sarajevo, Tuzla, Mostar and Zenica. These cities, and the remainder of the territory of Bosnia and Herzegovina, were occupied by the

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Bosniac-Croat alliance. This alliance was tense from the start, and one reason the Serb forces initially overran so much territory was the failure of Bosniac and Croat forces to cooperate. Hostilities broke out between Bosniacs and Croats in early 1993, over the 30 per cent of the territory that they jointly held. This conflagration was allegedly ignited by a secret agreement between Milošević (by this time President of Serbia) and Franjo Tuđman (President of Croatia) to divide the territory of Bosnia between them. The Bosniac-Croat hostilities were focused in central Bosnia, where a number of towns had mixed Bosniac and Croat populations, and around the city of Mostar, the Muslim part of which was besieged by Croat forces. Under American pressure, the Bosniacs and Croats agreed an armistice and a political basis for sharing Bosnian territory between them, which was recorded in the ‘Washington Agreement’ of 1 March 1994. The Washington Agreement divided the non-Serb territory into ten cantons, each with significant autonomy, which together comprised the Federation.

8. The three parties’ territorial possessions in early 1993. This was the maximum extent of Bosnian Serb territorial acquisitions (approximately 70 per cent of the country). Again the post-war dividing line between the Entities is superimposed, giving an indication of the extent of territory lost by the Bosnian Serbs by the end of 1995.

Hostilities between Bosniacs and Croats, in Herzegovina and central Bosnia, were in each case some distance from Brčko, and relations between those two parties remained relatively good in the Brčko area where there was a common military cause. While in Mostar in the south the

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Bosniacs and Croats were engaged in street-to-street melée, in the Brčko area Bosniacs served in the HVO (the Croatian army) because its soldiers received salaries from the Croatian government whereas the ARBiH, the Bosniac army, was a volunteer force. Federation territory was just 5km south of Brčko town centre. RS territory in the Brčko area was therefore the most vulnerable point in the entire RS front line, as it was so narrow: Croatia lay immediately to the north and Bosniac forces were immediately to the south. The Brčko municipality was the only land bridge between the two halves of the Republika Srpska, and therefore of vital strategic significance to the Bosnian Serb army. To ensure geographical continuity, it would also be an essential part of any new Bosnian Serb state that might emerge from the war. But it was equally important to the Bosniac-Croat alliance, as it would form the only contiguous border for their territory with the eastern Slavonia region of Croatia, and would provide the only access for the Federation to the shipping trade of the Sava river. The first aggressive action taken by Serb forces in Brčko was to destroy the two bridges from the town to Croatia, one road, one rail, on 30 April 1992. These were the last overland travel links to Croatia in all of northern Bosnia. (All other bridges over the River Sava, which demarcates the border between the two countries, had already been destroyed.) Over the subsequent days, Serb irregular forces swarmed into the town. Bosniac and Croat civilians – that is to say, the vast majority of the town’s residents – fled en masse to the villages south of Brčko as the Serb forces approached. In contrast to the war in the rest of Bosnia, where the Serbs were generally advancing, in the Brčko area the Serb forces were constantly under threat. The precariously narrow nature of the corridor, and its strategic importance for supplying Serb territories to its west, meant that both sides devoted their best forces to the hostilities in the Brčko area. Likewise in contrast to the war elsewhere in the country, in Brčko the Bosniac and Croat forces held together an alliance that never really frayed, because (unlike in Herzegovina and central Bosnia) they faced a common enemy and were not fighting over the same territory. The Bosniacs sought Brčko town, while the Croats sought to retain Orašje (a town to the north west of Brčko in which Croats were a majority), and both wanted to cut the Serbs’ lifeline. In 1992 Bosniac and Croat forces twice cut through the Serb corridor of territory to the west of the town, thus dividing the Republika Srpska into two and creating a blockade of all the Serb-held territory to the west, including Serb Krajina. The Bosnian Serb military commander Ratko Mladić recognised that he would lose all of western Bosnia and Serb Krajina if the resulting blockade lasted for any period of time. In each case he ordered major counter-attacks with air support and retook the corridor. As a result, Serb forces created a network of trenches and mines in the area to prevent further breakthroughs. The town was constantly under siege by Bosniac forces. Large amounts of the town, and most of the outlying villages, were

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razed. Serb militias went on the rampage in the town centre during the first six months of occupation, in widespread campaigns of torture, rape and murder (UN 1994). Those Bosniacs and Croats who had not fled the town were forcibly expelled or killed. Concentration camps were established by Serb forces, most notoriously in Brčko port. International observers never visited the port, but reports emerged of prisoners having to sleep standing up due to overcrowding, starvation rations, mass executions, mutilated corpses, mass rape, random beatings, widespread torture and victims’ bodies being thrown into the Sava (Kadrić 1999; Griffiths 1998; UN 1994). Serbs were forced from their homes on the front line due to shelling and Bosniacs and Croats fled their homes in Serb-occupied territory. Towards the end of the war, the RS government repopulated the town with Serb refugees displaced from other areas of the country now in the control of Bosniac and Croat forces, to cement the ethnic cleansing. By the end of the war, devastation of the Brčko area was nearly complete. 80 per cent of the buildings in the town were war-damaged. The outlying villages lay deserted, in desolate ruins. Serb forces had levelled the foundations of all the town’s mosques. Approximately 90 per cet of the pre-war population of the opština had been displaced, and thousands were dead.9 Subsequently, one of the longest sentences handed down by the ICTY (40 years) was given to Goran Jelisić, the self-styled ‘Serb Adolf’, for his participation in crimes in Brčko port (ICTY 1999), including torture and murder of children and the elderly. One other ICTY decision, against Ranko Češić, also catalogues the random and brutal nature of the crimes perpetrated against civilians in Brčko, including casual murders and acts of sexual humiliation (ICTY 2004). By the end of the war in December 1995, Brčko lay in ruins. In the words of Carl Bildt, the last EU peace negotiator for the former Yugoslavia, and first High Representative: My first visit to Brčko came as a shock. The southern parts of the town made it look as if the world has come to an end. Snow covered the ruins, which stretched as far as the eye could see. But what made the greatest impression was not what could be seen, but what the ear could not hear. There was absolute silence. Life always involves sounds – a dog, a child, traffic on a distant road. But here there is nothing, just silence and ruins… I made my way down to Brčko harbour. At one time, coal from the mines of Tuzla was shipped by barge from here to the steelworks in Serbia. Unless, of course, it went via the railway bridge just a few yards away, to continue up to Vukovar in Eastern Slavonia, and onwards by boat along the Danube itself. Now, the harbour was destroyed, the mines closed down, the bridge with a gaping hole in the middle and Vukovar equalling Brčko in destruction.

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But the harbour was also a prison camp and execution site when the Serb campaign of cleansing began. From here, bodies were slung from the quay down into the river. Executions took place in the warehouse. The police accompanying me looked around, resigned, ashamed and confused, as I walked in silence between the quay and the warehouse. I did not want to enter the building. (Bildt 1998, Chapter 1) Brčko was a major obstacle to agreement in the various failed peace plan talks that predated the DPA: the Vance-Owen peace plan, negotiated in January to June 1993; the Owen-Stoltenberg plan, negotiated in July and August 1993; and the Contact Group plan, negotiated between February and October 1994 (Williams 1998). It was also a stumbling block in the secret negotiations between Croatian President Franjo Tuđman and Yugoslavian President Slobodan Milošević aimed at dividing Bosnian territory between the two countries (Griffiths 1998). And Brčko dogged the subsequent Dayton peace negotiations in late 1995. The General Framework Agreement for Peace in Bosnia and Herzegovina (GFAP), or Dayton Peace Accords (DPA),10 signed on 14 December 1995, was the product of intense international pressure. The war had churned on for three and a half years without any prospect of the parties reaching their own armistice. Repeated attempts at international mediation to end the war had failed. Stories of concentration camps, genocide, atrocities and unspeakable civilian suffering were plastered across the western media on a daily basis. The US administration took the lead in forcing the parties finally to sign a peace agreement. NATO air strikes on Bosnian Serb positions in late August and September 1995 were led by American aircraft. Serbia was under tight economic sanctions and its economy was collapsing; it could not continue to fund the war. Slobodan Milošević, the president of what was left of Yugoslavia, was told that those sanctions would not be lifted until the war in Bosnia was concluded. To adjust the balance of power between the opposing military forces, US military aid was supplied to the Bosniac armed forces via the airport in Tuzla (in Bosniac-controlled territory in northern Bosnia), in contravention of the UN Security Council embargo on arms exports to the region that the US government had supported. As a result, Bosniac and Croat forces started retaking territory in western Bosnia and came extremely close to capturing the principal Bosnian Serb city of Banja Luka. At that stage, the Americans summoned all the warring parties to the Dayton Air Force Base in Ohio, and in a three week marathon negotiating session forced them to hammer out an agreement. The resulting agreement was a complex document, with 13 annexes, all of which were drafted by American lawyers from the US State Department.

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The Dayton Peace Accords provided that Bosnia and Herzegovina (‘Bosna i Herzegovina’, or ‘BiH’) would become a sovereign state with the same international boundaries as the pre-war borders of the SRBiH. But it partitioned the country into two ‘Entities’, the RS and the FBiH, roughly along the ceasefire line (with some horse-trading). There would be a central government of BiH, but its authorities would be weak, and within strictly delimited spheres; the bulk of legal powers would lie with the Entity governments within their territories, over which they would have exclusive control. A new constitution for Bosnia and Herzegovina, agreed at Dayton, reflected these arrangements. The Dayton Constitution is Annex 4 to the GFAP. It is perhaps unique in being the only constitution in the world whose enacting instrument is an international treaty, and it has never been ratified by any parliament within Bosnia and Herzegovina. It embraced a political philosophy known as ‘consociationalism’. This is a theory of how to structure government in divided societies that focuses on national quotas in government institutions, the forging of consensus between politicians representing the rival groups and mechanisms to prevent outvoting of one group by another.11 The Dayton Constitution will be studied carefully in subsequent chapters, but for now it suffices to note that the intention of consociational mechanisms is to promote inter-ethnic compromise between political representatives of each group, on the basis that no one group can achieve anything without the cooperation of the others. The other annexes to the DPA contained provisions on various aspects of the peace settlement, from preservation of national monuments12 to return of refugees13 to withdrawal from the front lines of military forces.14 ‘Military implementation’ of the DPA would be secured by an international military force called ‘IFOR’ (the ‘implementation force’) that would be deployed in the country in the biggest peacekeeping operation in modern times, at its zenith comprising about 80,000 foreign troops.15 ‘Civilian implementation’, by contrast, would be secured by an international official called the ‘High Representative’.16 The Dayton Agreement is a very strange document prepared in very strange circumstances. It is important to understand the process by which it was agreed, because it explains why it was subsequently so difficult to persuade any of the parties to abide by it. It was a process of forcing a group of recalcitrant people to sign a document they did not understand or care for using extreme pressure and threats. Each of the three warring sides arrived in Dayton completely unprepared for the negotiations and they were not allowed to leave until an agreement had been thrashed out. The representatives of each group brought few professional advisers and almost no papers. Detailed maps were provided by the US government. The parties themselves drafted nothing. The entirety of the text was prepared by American lawyers present at the negotiations, on the best understanding they thought they could muster of what the parties had been forced to

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agree. Croat and Serb leaders cared naught for the various annexes, which they assumed were prepared by the Americans just to sweeten the bitter pill of partition for the Bosniacs. Coming from a legal culture in which the notion of primacy of contractual obligations was barely understood, they never imagined that any of the Dayton annexes would be implemented. The only thing they cared about was the map that marked the demarcation line between the warring sides. They realised that this map would mark the dividing line between distinct mono-ethnic territories and peacekeeping troops would occupy the area around that line. For the local politicians, particularly the Croats and the Serbs, Dayton was a partition plan in all but name. All the ancillary provisions – on a central government, a constitution, refugee return and state commissions – were mere verbiage, window dressing to be forgotten. What made post-war Bosnia so complicated was that the international community did not see the Dayton agreement in that way at all. They expected the parties to honour the commitments they had signed up to, something that was unimaginable to the signatories themselves. For the domestic politicians, Dayton was just a waypoint in continuing the struggle, not an endpoint. Bosnia had always been fought over, and that was not about to stop just because some foreign lawyers had drawn up a sophisticated document. Some initial remarks should now be made about the High Representative, although we will return repeatedly to this institution throughout the course of this book. Under Annex 10 to the DPA: …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 [in implementing the peace agreement] 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 UN Security Council resolution, the tasks set out below.17 Annex 10 continued to list a series of responsibilities of the High Representative, which included obligations to ‘[m]onitor the implementation of the peace settlement’, ‘[m]aintain close contact with the parties to promote their full compliance’, ‘[c]oordinate the activities of the civilian organizations’, ‘[f]acilitate…the resolution of any difficulties arising’, ‘[p]articipate in meetings of donor organizations’ and make periodic reports to the UN.18 To perform those tasks, the High Representative would appoint staff, who would have full diplomatic immunity.19 The Office of the High Representative (OHR), as it would become known, was to be the principal international agency in charge of pursuing the goals of the DPA. The first High Representative was former Swedish Prime Minister, Carl Bildt, who arrived in Sarajevo in December 1995. Although initially a very modest

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organisation working in primitive post-war conditions, in time OHR would come to have several hundred staff and the role of the High Representative would evolve into that of an internationally appointed dictator; this story will be told in the subsequent chapters. OHR was a joint venture between the Americans and the Europeans. Bosnia being in Europe, the Europeans were supposed to take a lead role in peace implementation, and the High Representative has by convention always been a European. However, the peace agreement was rightly perceived as an American achievement, and the most significant contributors to IFOR in financial and manpower terms were the Americans. The High Representative’s ‘principal deputy’ (the ‘PDHR’) would always therefore be an American, and the US government would always remain highly influential in international policy-making in post-war Bosnia. The briefest of reference also should be made here to the ‘Peace Implementation Council’ (PIC). This was a periodic meeting of diplomats representing the donor nations to the Bosnian peace effort. Although there is no reference to the PIC in the DPA, it subsequently vested itself with legal powers and became the principal international policy-making body for post-war Bosnia, at whose meeting the progress of the country would be discussed and strategic decisions would be made. Coexistence of the Washington Agreement, the Dayton Constitution and supervision by international institutions made for a government structure of Byzantine complexity. The RS had a centralised administration, with its own prime minister, president, parliament and judiciary. By contrast, the Federation – roughly the same geographical size as the RS – had ten cantons, each of which had its own prime minister, parliament and judiciary. Above the cantons, a Federation prime minister, president, parliament and judiciary existed in an overarching federal structure. On top of this, the Dayton Constitution created a third tier of federal state-level institutions that coexisted alongside the cantonal and Entity governments, with three presidents, a prime minister, two legislative chambers and a constitutional court. All of these institutions exercised powers that would ordinarily be considered the province of central governments of sovereign states. Bosnia and Herzegovina had 13 prime ministers. On top of these domestic institutions, the DPA gave no fewer than six international organisations executive legal powers (IFOR, NATO, OSCE, UNHCR, OHR and UNIPTF) and established four quasi-domestic institutions outside the scope of the Constitution (the Joint Military Commission, the Human Rights Chamber, the Commission to Preserve National Monuments and the Commission on Public Corporations). It was not clear from the DPA how the international and domestic legal authorities would interact, and that issue would be only gradually resolved in a haphazard and chaotic fashion. However, one thing was certain from the start. This would be one of the most complex government structures in the world.

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The location of the border between the Entities – the ‘Inter-Entity Boundary Line’ or ‘IEBL’ – was the principal issue for negotiation at Dayton. Because of its strategic significance, the parties could not agree into which Entity the Brčko opština would fall. The RS insisted on Brčko being within its Entity, because otherwise RS territory would be split in two and it could never (as it wished) become a credible independent state. For exactly the same reason, the Federation insisted on Brčko remaining in its territory and pointed to the fact that the town was predominantly Bosniac before the war. Richard Holbrooke, US Undersecretary of State and the chief international negotiator, described the problem in stark terms: ‘the issue of the Posavina Corridor and Brčko…prove[d] to be the toughest of all issues at Dayton’ (Holbrooke 1999, Chapter 18). The matter threatened to derail peace negotiations and there was a real concern that the parties would resume hostilities in the Brčko area. The solution reached was to defer resolution of the Brčko issue to binding arbitration at a later date. There are conflicting accounts of who dreamt up this idea. Bildt maintains that it was Tuđman who proposed it, with Holbrooke finally persuading Milošević to agree to it (Bildt 1998, Chapter 9). Holbrooke himself suggests it was Milošević’s idea and that Milošević proposed US Secretary of State Warren Christopher as arbitrator (Holbrooke 1999, Chapter 18). None of the international negotiators at Dayton seemed to want to take responsibility for such a risky notion. In Bildt’s words: ...we were all in total agreement that arbitration on Brčko was a thoroughly bad idea. But we also agreed that we could not, and should not, do much about the situation if the parties wanted an agreement based on a really bad idea. (Bildt 1998, Chapter 9) Yet it seems more likely than not that one of the international negotiators themselves thought the idea up, as the notion of international arbitration over a territory would have been quite alien to the legal and political cultures of the Yugoslav negotiating parties. In the event, one of the American lawyers present at the negotiations, Roberts Owen (whose name shall be returned to repeatedly in this story), drafted some text into the Dayton accords to give effect to the concept of arbitration for Brčko. By his own admission Owen wrote the text on instructions given to him by Holbrooke just half an hour before the DPA was due to be initialled; to describe this as a ‘rush job’ would be an understatement. In the event, Article V of Annex 2 to the DPA recorded the agreement reached: Article V: Arbitration for the Brčko Area 1. The Parties agree to binding arbitration of the disputed portion of the Inter-Entity Boundary Line in the Brčko area indicated on the map attached at the Appendix.

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3. 4. 5.

No later than six months after the entry into force of this Agreement, the Federation shall appoint one arbitrator, and the Republika Srpska shall appoint one arbitrator. A third arbitrator shall be selected by agreement of the Parties’ appointees within thirty days thereafter. If they do not agree, the third arbitrator shall be appointed by the President of the International Court of Justice. The third arbitrator shall serve as presiding officer of the arbitral tribunal. Unless otherwise agreed by the Parties, the proceedings shall be conducted in accordance with UNICTRAL20 rules. The arbitrators shall apply relevant legal and equitable principles. Unless otherwise agreed, the area indicated in paragraph 1 above shall continue to be administered as currently. The arbitrators shall issue their decision no later than one year from the entry into force of this Agreement. The decision shall be final and binding, and the Parties shall implement it without delay.

It was by these words that the Brčko arbitration tribunal was born. The rest of this story is an account of how that tribunal was formed, why it was unique, what it did, and the astonishing changes it wrought upon the postwar Bosnian political order. Its decision would be critical to peace and stability in the region. In 1998, Bildt wrote that ‘one day, the final act in the drama of the peace process will be played out here. What happens to Brčko will determine much of the fate of Bosnia, and perhaps the fate of the Balkans.’ (Bildt 1998, Chapter 1.) The Brčko tribunal would be forced to decide an issue with political consequences of an unimaginable enormity for the region. But before a discussion of what the tribunal actually did, we should pause to make a few comments about international arbitration generally, to help us understand why this arbitration tribunal would be so unusual. International arbitration Arbitration is a process by which two parties to a dispute agree that it will be resolved by a private court, called a tribunal. The tribunal will usually consist of a panel of several judges, known as arbitrators, selected at least in part by the parties to the dispute. The parties agree upon the scope of the dispute on which the arbitrators will rule, the law they will use, the procedures to be adopted and the ‘seat’ of the arbitration (i.e. the location in which the tribunal will sit) and generally they may restrict the tribunal’s proceedings in any way they see fit. Proceedings may be held in private if the parties so agree and they may or may not provide for appeal to a court. In contrast to any particular country’s domestic courts, the arbitrators may

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be from different countries, they may have non-legal specialist skills and they will endeavour to work to a timetable that the parties request, rather than one that a domestic legal system prescribes. The arbitrators are paid by the parties, who usually agree to share their fees equally. A number of organisations offer ‘model’ procedural rules of arbitration, such as the International Chamber of Commerce, the London Court of International Arbitration, the American Arbitration Association, the United Nations Commission on International Trade Law (UNCITRAL) and the International Centre for the Settlement of Investment Disputes (ICSID, part of the World Bank group). Parties to an agreement to arbitrate may agree to one of these sets of rules, with or without amendments, or may agree to their own rules or to give the arbitrators discretion over the procedure to be adopted – what is called an ‘ad hoc’ arbitration. The disputes most usually referred to arbitration concern international commercial contracts and investments, and disputes about international legal issues in which one or both parties are states, because in these cases there may be concerns about the neutrality or appropriateness of domestic courts. The Brčko arbitration agreement was therefore unusual, in that it was a public international law arbitration, but between two sub-sovereign units. The parties were the Entities, not states, and the issue in dispute was control by the Entities within the Brčko area. In one sense, the dispute was purely domestic: the disputing parties both fell under the sovereignty of the independent state of Bosnia and Herzegovina. However, there is no way the courts of Bosnia and Herzegovina could resolve the dispute: they did not exist21 and even had they done so, or had a domestic court been specially constituted to resolve the dispute, it could never had rendered justice impartially or with adequate quality in the prevailing post-war conditions. In contemporary legal practice, arbitration is a field of specialisation all of its own, with lawyers who focus solely upon arbitration proceedings or almost exclusively so. Arbitration has its roots in the common law notion of freedom of contract, including freedom to decide upon a dispute resolution mechanism of one’s choice. Many of the world’s arbitration specialists are from a common law background, with London and New York being the significant centres. But there is also a significant civil law arbitration practice, focused principally in Paris and Geneva, and in recent years arbitration has blossomed throughout the world with regional centres in places as far apart as Kuala Lumpur, Cairo and Tehran. Arbitration is a wonderfully flexible tool and both public and private bodies can be parties to an agreement to arbitrate. In disputes where one or both parties is a state, international organisation or sub-sovereign political region (what is generally called public international law arbitration), agreements to arbitrate can overcome the problems of a sovereign institution being reluctant to submit to another sovereign unit’s domestic courts.22 Where both parties

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are private institutions (private international arbitration) but are from different countries, a dispute about whether the courts of each party’s nationality will be biased against the other party can be bypassed through an agreement to arbitrate before a neutral tribunal. This was not the first time that international arbitration had been used to resolve a territorial dispute. There is a modest but respectable history of such arbitrations prior to establishment of the Brčko tribunal, the first occurring in 1794 under the ‘Jay Treaty’ between the United States and the United Kingdom. That arbitration was established to resolve boundary issues between the United States and Britain’s Canadian colonies after the American War of Independence. In the twentieth century, two historical territorial disputes had been referred to arbitration before Brčko, if one passes over the chaotic shambles of the Radcliffe Commission’s mandate to draw the line of partition India and Pakistan (see Chapter One). The first of these was the ‘Rann of Kutch’ arbitration, a far more sensible attempt to settle one of a number of disputes between India and Pakistan that arose after the unsatisfactory work of the Radcliffe Commission. The territory at issue was relatively unimportant; it consisted of some mostly uninhabitable marshland stretching along 200 miles of the southern part of their joint border. In 1965, hostilities broke out over the sovereignty of the area and under a ceasefire agreement mediated by the British government the dispute was to be settled by arbitration. The issues referred to arbitration were narrow – whether there was a historically recognised boundary, to which the tribunal answered no – and whether the British government had done anything during the colonial period to recognise that the territory was part of the Indian state of Kutch. The proceedings were essentially factual in nature, involving an enquiry into historical maps, evidence of whether the territory had historically been used by inhabitants of either the Indian or Pakistani province and which province’s governments had exercised tax and police authority over the territory (ILM 1968). In many ways similar, the Taba area arbitration between Israel and Egypt was the product of the 1979 Camp David peace agreement, which contained an arbitration agreement over the disposition of a small slice of land including the village of Taba in the northern Sinai, being little more than a large hotel complex and the associated beach. As with the Rann of Kutch arbitration, the scope of the issues before the tribunal was narrowly set by the agreement to arbitrate. The dispute was about a series of 14 historical boundary pillars, but the tribunal was not at liberty to establish the location of a pillar other than at a location advanced by either Israel or Egypt. The enquiry proceeded principally by reference to photographs and maps showing the locations of these pillars (ILM 1988). In both these arbitrations the dispute was narrow and the enquiry essentially factual. There were no difficult issues of international law, and it was clear what the tribunal was being asked to do and the methods and

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types of evidence it would employ. As in the Brčko case, the arbitrations had been established pursuant to ceasefire agreements, but in neither case were the territorial disputes of overwhelming political importance. In the Rann of Kutch arbitration, the territory was basically worthless; the important issue for both sides was that its status was resolved in a neutral manner in a period of heightened political tension when neither side could be seen to lose face. In the Taba arbitration, there was some economic value to the territory in dispute, in the form of a multi-million dollar hotel complex. But the value of that complex paled in comparison to the political value of establishing the first peace treaty between Israel and an Arab country. In both cases, arbitration was better for both sides, whatever the outcome, than no agreement. It is also worth observing that in both cases the arbitration agreement provided for a tribunal with a majority of neutral members. In the Rann of Kutch arbitration, the party-appointed arbitrators could not be from the disputants’ countries. In the Taba arbitration, three out of five of the arbitrators had to be from neutral countries and acceptable to both sides. Neither of these mechanisms were used in the Brčko arbitration, with troublesome consequences, as shall be seen. With knowledge of these prior territorial arbitrations, coming to the DPA for the first time one might find the Brčko arbitration clause very unusual, and be surprised by the rulings that the tribunal actually came to make given the arbitration clause governing its mandate. The scope of the arbitration agreement, the nature of the tribunal’s enquiry and the magnitude of the issues at stake could not be more different than in the Rann of Kutch and Taba arbitrations. Consider the following issues. First, the subject matter of the arbitration was stated to be ‘the disputed portion of the Inter-Entity Boundary Line in the Brčko area indicated on the map attached at the Appendix’. The appendix to Annex 2 of the DPA was a map of Bosnia and Herzegovina, showing the location of the IEBL. But there was no indication of which part of the IEBL was ‘the disputed portion…in the Brčko area’. The map just showed the IEBL running through the middle of the pre-war Brčko opština. It did not delimit which part of it was disputed. The subject-matter clause in the arbitration agreement was therefore incomplete. If the intention was for the arbitration tribunal to redraw the IEBL, it was not clear how much of the IEBL the parties were agreeing to allow it to redraw. Second, arbitration agreements rarely state a time limit within which the arbitration procedure must be completed, because that holds the tribunal hostage to the risk that the dispute turns out to be more complex than anticipated and cannot be fairly resolved within the prescribed time scale. Indeed that was exactly what happened in the Brčko case, and the aspiration that a ‘final and binding’ decision would be issued by December 1996 proved to be vastly over-optimistic. The tribunal initially faced

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heinous problems in the appointment of the arbitrators and securing their participation in proceedings. The tribunal issued two interim awards, on 14 February 1997 (ILM 1997) and 15 March 1998 (OHR 1998i). For reasons clearly stated in the tribunal’s awards to be matters of political expediency, no award describing itself as ‘final’ was issued until 5 March 1999 (OHR 1999a). As shall be seen, even that award (which came to be known as the ‘Final Award’) could not really be seen as final and proceedings before the tribunal remained ongoing until June 2007. Third, the choice-of-law clause in the Brčko arbitration agreement is extremely unusual. In the Rann of Kutch and Taba arbitrations, the parties had very clearly laid out the permissible legal rules the tribunal could use to resolve the dispute before it. In the Brčko arbitration exactly the opposite arrangement had been recorded: the arbitration agreement contained no substantive guidance in it at all about what legal rules the tribunal should apply. It merely stated that ‘the arbitrators shall apply relevant legal and equitable principles’, without describing what legal and equitable principles are relevant. This is no standard legal formulation. It is not clear what ‘relevant’ legal principles are, still less relevant ‘equitable’ principles. Indeed it is not clear that any legal principles could be relevant. The constitutional law of the former SFRY, or of the SRBiH, could hardly be relevant, as the entire constitutional order of pre-war Yugoslavia had been superseded within the territory of Bosnia and Herzegovina. The Dayton Constitution recognised the Entities as political units with no pre-war parallels and the principal issue for the arbitrators was within which Entity the District would fall: hardly issues on which SFRY or SRBiH law could assist them. An assertion that the clause makes reference to general principles of public international law is also problematic. The parties to the arbitration were not states, but sub-sovereign political units, and it is therefore difficult to see how the law of relations between states could apply.23 Moreover, the distinction between ‘legal’ and ‘equitable’ principles is a creature of the common law and has no meaning in the context of the legal system prevailing in the former Yugoslavia in 1995.24 The only reasonable conclusion is therefore that the clause is intended to give the tribunal the maximum discretion to decide the issue before it, in any way it thinks appropriate. The clause seems more akin to the concepts of ex aequo et bono or amiable compositeur. These terms are used to describe the situation in which parties to an arbitration clause agree that the arbitrators may dispense with consideration of the law and consider solely what they consider to be fair and equitable in the case at hand. The UNCITRAL Rules anticipates that the parties to an arbitration may agree that the tribunal resolve any dispute ex aequo et bono, but they provide that the tribunal may not resolve a dispute on this basis without express agreement of the parties. The Statute of the International Court of Justice is of the same effect.25 In practice such an agreement is extremely rare.

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Why did the parties to the DPA agree to an arbitration clause that gave no guidance about the legal rules the tribunal would use to resolve the dispute they had agreed to arbitrate? The principal parties to the DPA were the Republic of Croatia, what was left of the Republic of Yugoslavia (by then only Serbia and Montenegro) and the (wartime) Republic of Bosnia and Herzegovina. They were represented by President Franjo Tuđman of Croatia, President Slobodan Milošević of Yugoslavia and President Alija Izetbegović of the Republic of Bosnia and Herzegovina. (Although the Entities did not sign the DPA itself, representatives of the Federation and the RS did sign several of its annexes, including Annex 2.) No doubt none of these three individuals had a hand in the text of the arbitration clause. It is manifest from the style and format used that the entirety of the DPA was drafted by American lawyers. The document reads like a series of American contracts. No part of the DPA exhibits the drafting style characteristic of Yugoslav lawyers. Even the Dayton Constitution is a document quite alien to Yugoslav legal traditions.26 It takes little imagination to speculate that either the signatories to the DPA never read the arbitration clause, or if they did they had little appreciation of its significance. There is no sense in which this arbitration agreement reflected the common will of the negotiating parties; it was an eleventh-hour deal to establish an international legal institution which, in all probability, none of the signatories to the DPA fully understood or thought would ever be implemented. Fourth, the most remarkable feature of the tribunal was the broad jurisdiction it granted itself in determining what dispute it had been constituted to resolve, and what remedies it could fashion to do that. The jurisdictional clause – ‘binding arbitration of the disputed portion of the Inter-Entity Boundary Line in the Brčko area’ – seems quite narrow given the context of the dispute. The principal issue at Dayton was the location of the IEBL. Annex 2 to the DPA, within which the arbitration agreement appears, is entitled ‘Agreement on Inter-Entity Boundary Line and Related Issues’. The Annex includes a map and states that the map shows the border between the two Entities. It contains provisions for artificial and natural changes in the courses of rivers that form part of the border and provides for the international military force (called ‘IFOR’) commander to make certain minor adjustments.27 It also provides that the parties can, by mutual consent and in consultation with IFOR, agree to move the IEBL.28 In this context the most natural reading of Article V(2) of Annex 2 would be that the tribunal would rule upon the location of the IEBL in the Brčko area. While, as shall be seen, the tribunal toyed with doing just that in its early stages, its eventual resolution was quite the opposite: it abolished the IEBL in the Brčko area, ordered the establishment of an autonomous multi-ethnic government completely independent of those in the Entities, mandated a series of economic and institutional reforms that it hoped would yield a degree of permanence for the new government structure and

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created an international civil servant, the ‘Supervisor’, to oversee and indeed compel implementation of its rulings. Above all, the tribunal mandated creation of a completely new legal order in the Brčko area, including a set of unique legal and political institutions. How could the tribunal conclude that it had jurisdiction to do all these things? Strict application of internationally recognised principles of arbitration would suggest that the tribunal had clearly overstepped its mandate, as it is a well-established principle of international arbitration that arbitrators may not decide issues that have not been referred to them.29 The answer seems to be a realisation by the Presiding Arbitrator that the problem, narrowly construed, was simply insoluble without politically (or even militarily) devastating consequences. Therefore the tribunal’s mandate, the legal considerations the tribunal would be prepared to entertain, the remedies available to it and the time scale within which it was bound to operate, were all given an extremely liberal interpretation. This would be the first in a new breed of politically driven arbitrations, in which legal precedents and strict procedural rules would be bent to the limits to resolve otherwise impossible political problems. The underlying difference between the Brčko arbitration agreement and its two twentieth-century predecessors was the enormous strategic importance of the territory in dispute and the fact that the parties had been coerced into the arbitration agreement by the American mediators. The Dayton Peace Accords were the product not of calm and deliberate discussions between the warring parties on how to end hostilities; the politicians of the day seemed to have an inbuilt desire to keep on killing each other until there was nobody left alive. (In the words of Radovan Karadžić, wartime leader of the Bosnian Serbs, they would ‘rather eat grass’ than live within a Muslim-dominated independent Bosnia.) Rather it was the outcome of NATO air strikes on Bosnian Serb military positions, extreme American diplomatic pressure and Milošević’s desire to see economic sanctions on Yugoslavia lifted. Many were sceptical about whether arbitration could possibly resolve a territorial dispute in such circumstances.30 They underestimated the intellectual ingenuity of the Presiding Arbitrator, the tenacity of the Supervisors and their staff, and the hordes of heavily armed US troops that would act as the muscle to see that the tribunal’s awards were carried out. Let us now turn to examine how all this worked.

3 THE TRIBUNAL’S FIRST AWARD

The immediate post-war period was characterised by RS intransigence and reluctance to implement the Dayton Peace Accords. Withdrawal of RS military forces from the ‘zone of separation’ (ZOS), a demilitarised buffer zone that extended two kilometres either side of the IEBL, proceeded relatively smoothly and the ZOS became the territory of IFOR, the international peacekeeping force. But beyond this, the RS generally ignored the terms of the Dayton Peace Accords. They refused to participate in state institutions1 and refused to comply with the agreement to facilitate refugee returns to RS territory contained in Annex 7 to the DPA.2 The RS political agenda at that time was achieving independence for its mini-state, a goal diametrically opposed to the emerging policy of the international community, which sought to preserve the territorial integrity of a sovereign state of Bosnia and Herzegovina above all else. The political agenda of the Croat leadership was the same as that of the Serbs, and they were busy establishing parallel institutions in Herzeg-Bosna territory, outside the formal structures established by the Washington Agreement and the DPA. With the benefit of hindsight, the determination of the international community to preserve Bosnia as a unified state in the face of the Dayton Constitution looks increasingly inexplicable on any rational basis. With its highly decentralised and multiple layers of government based upon wartime territorial acquisitions, the Dayton Constitution seemed in its structure an obvious precursor to the country being split into several pieces. The effort invested by the international community since the DPA in maintaining the integrity of the Bosnian state against this tide has been colossal, and yet strong doubts still exist about whether the effort has been successful or even could be so indefinitely into the future. Bosnia has not been an independent state since Ottoman occupation over 600 years ago, and has never been independent within its current borders. Favouritism by the international community for the Bosniacs, who were perceived as being least responsible for the record of atrocities committed during the war, may explain this to a great extent. The desire not to let policies of ethnic cleansing bear fruit may also be important. But the desire to maintain

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Bosnia’s territorial integrity may also be the result of a wish to prevent the creation of an ethnically homogeneous Muslim state within Europe – in other words, a desire by the Europeans and the Americans to dilute Islam where they find it. The essential problem with the Bosnian state created by the DPA was – and to this day remains – that Bosniacs see the independent country as theirs, but the Serbs and Croats of Bosnia seemingly have no desire to live with one another or with Bosniacs in an independent Bosnia. In light of the international community’s agenda, cooperation with international officials was an anathema to RS political aims. The initial conduct of the RS towards the Brčko tribunal process therefore betrayed a predictably belligerent attitude. Even constitution of the tribunal proved troublesome and required delicate diplomacy. With great persuasive effort from Carl Bildt, the first High Representative, the Federation and the RS initially appointed their arbitrators, Čazim Sadiković and Vitomir Popović respectively. But these appointees made no attempt to agree upon a third arbitrator, as the arbitration agreement provided that they should. This passing fact was perhaps to be expected, but the international community must have been extremely relieved. Imagine the calibre and perspectives of a candidate for Presiding Arbitrator that the party-appointed arbitrators might have agreed upon, had they tried. The selected individual would almost certainly have been a lawyer from the former Yugoslavia. Whatever his nationality, he would inevitably have been accused of egregious bias. He might well not have had the wisdom and imagination to render the awards the tribunal issued. He might well not have had the international community’s support, in particular the support of the US military. The Brčko project was only a few steps from disaster at this early stage. It must have been with a great sigh of relief that the party-appointed arbitrators made no effort whatsoever to select a Presiding Arbitrator, and the US could therefore shoehorn in their own candidate. Under the default provision in the arbitration agreement where the party-appointed arbitrators do not agree upon the identity of a Presiding Arbitrator, the President of the International Court of Justice (ICJ), the United Nations Court, appointed Roberts Owen as the Presiding Arbitrator in July 1996.3 The then President of the ICJ, Mohammed Bedjaoui of Algeria, did not of course himself choose Owen; Dayton chief international negotiators Holbrooke (US) and Bildt (EU) chose him, as Bildt freely admits (Bildt 1998, Chapter 17). Holbrooke says that Owen’s name was discussed as an arbitrator between him and Milošević at the Dayton Peace negotiations (Holbrooke 1999, Chapter 18), but there was no formal agreement on the identity of the Presiding Arbitrator reached at Dayton. Whenever they made the decision to choose Owen, one can only assume that the Holbrooke/Bildt choice was then given effect by a quiet word from the US Ambassador to the Hague, in a process glossed over by Bildt as ‘the customary ritual absurdities’ (Bildt 1998, Chapter 17). Owen, head of the

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State Department’s legal office in the Carter administration, had participated in the DPA negotiations and played a major part in drafting the DPA Constitution. Presumably horrified by the appointment of an American (who, after the NATO bombing of Bosnian Serb military positions towards the end of the conflict, were perceived by Serbs as biased against them), the RS arbitrator subsequently refused to participate in the proceedings until the tribunal held a hearing on 8 January 1997, and at one point the RS even purported to withdraw its appointment of Popović.4 After deliberations on the content of the award, both Sadiković and Popović refused to sign it. Owen was therefore forced to issue an award unilaterally. In less extreme circumstances his close prior involvement in the dispute might have excluded Owen from being an arbitrator. A former US State Department employee and associated closely with the US efforts to negotiate a peace settlement in Bosnia, he had been part of the US negotiating team at Dayton. The parties signed the Dayton agreement under American threats. The Americans were perceived as anti-Serb. Owen himself had drafted the arbitration agreement on which he would now rule, a practice virtually unheard of in international arbitration. With cynical hindsight, one might suspect the entire tribunal process to have been a preordained American plan. From his participation in Dayton, Owen knew a great deal about Bosnia and Herzegovina in general (he had helped draft the Dayton Constitution) and Brčko in particular. Had Owen not been an American, and well connected in the corridors of power in Washington, DC, he would never have been able to undertake the behind the scenes political lobbying necessary for the State Department to appoint and fund a position of Supervisor, who would command the loyalty of US troops. This arbitration would be extraordinary in every sense. In stark contrast to the usual dispassionate temperament of international arbitration, it was a highly political process, established to resolve a near-impossible political problem, in which every arbitrator could be portrayed as having a political agenda. In the confrontational political atmosphere of Dayton, a serious attempt to establish a neutral arbitration process would have made some effort to ensure that the party-appointed arbitrators were themselves neutral and of appropriate calibre. For example, all three arbitrators might have been required to be registered with an appropriate professional body such as the International Chamber of Commerce or the Permanent Court of Arbitration. Or (as with the Rann of Kutch arbitration) the parties might have been obliged to appoint arbitrators not from their own ‘countries’, effecttively forcing them to pick outsiders who would be more politically impartial and less susceptible to the overwhelming domestic political influences prevalent in Bosnia and Herzegovina immediately after the end of the war. It seems surprising that these types of procedural safeguard were not included within an arbitration agreement covering such a hot

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political dispute. Given this, and the ambiguity inherent in the arbitration agreement’s description of the tribunal’s mandate, it is hard to escape the conclusion that the arbitration agreement was poorly drafted. There are two conceivable explanations. One is the ‘blunder’ theory, to which Owen himself subscribes: he had half an hour to draft the arbitration clause, he had had no sleep the night before and in the time-pressured, exhausting atmosphere of the Dayton talks there was no opportunity to reflect upon and review the draft before it was signed. The world of diplomacy being as it is, once the agreement was signed, establishing an arbitral tribunal then became an ad hoc process that stumbled along until Owen, or someone else in the State Department, happened upon the extraordinary ideas of a Supervisor and a District. The other is the ‘conspiracy’ theory: the arbitration agreement was deliberately badly drafted, because the Americans knew the resolution of the Brčko issue would be highly politicised, they knew the Federation and the RS would appoint hopelessly biased arbitrators who would be unable to agree on the appointment of a neutral presiding arbitrator and therefore they knew that under this arbitration clause the US government would be able to shoehorn in their own man who could tailor a solution that the State Department and the US military would enforce. In other words, this was an experimental American neo-colonial mini-project from the very outset. The tribunal faced some unusual facts on the ground with which it had to contend. The entirety of the Brčko opština was devastated. ‘Ethnic cleansing’ – population movement to achieve geographical separation of different national groups – was complete. Three municipal governments existed within the Brčko opština: the Republika Srspka Brčko municipality, the municipality of Brčko-Rahić (a Bosniac administration, by 1996 established in the village of Brka just to the south of Brčko town) and the municipality of Ravne Brčko (‘flat Brčko’), a Croat administration, centred in the village of Seonjaci to the south west of town and treated by Orašje canton as being under its auspices. These three administrations had no formal ties and few contacts. The map contained at Annex 2 to the DPA had drawn a line through the Brčko opština, which represented the zone of separation within the Brčko area and a ‘temporary’ IEBL pending the arbitration process. The territory to the north of that line was controlled by Republika Srpska and RS law was being applied. The territory to the south of the line was treated by the Federation as part of Tuzla Canton and the laws of the Federation and of Tuzla Canton were applied there. Under the Washington Agreement, the territory of the Federation was divided into ten cantons, each of which would have significant self-governing autonomy. Some of the cantons are predominantly Bosniac, some predominantly Croat and some mixed. A relatively weak Federation government, with limited competences, presides over all the cantons. Tuzla canton is a large predominantly Bosniac canton of around 600,000 people whose capital is

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the city of Tuzla, about 65 kilometres south of Brčko. There was also some Federation-controlled territory to the north west of Brčko town, centred upon the village of Vučilovac. (The entirety of this territory was in the ZOS; Vučilovac bore the severest scars of war.) Until establishment of the District, this area was administered as part of Orašje canton. Although Brčko had been one of the wealthiest places in SRBiH before the war, by 1995 there was virtually no economic activity in the entire opština. The port on the Sava had been used as a concentration camp by RS paramilitaries and the river was for the most part unnavigable because it had not been dredged for several years. The bridge to Gunja, the village to the north of Brčko in Croatia, had been destroyed using explosives on 30 April 1992, causing the deaths of hundreds of civilians, many of them refugees escaping over it at the time. (There is evidence from the International Criminal Tribunal for Yugoslavia suggesting those giving the orders to destroy the bridge knew of the civilians’ presence on it.) The factories in the town had been rendered unproductive by war damage or had been subverted to purposes of terrorising the civilian population. The Bimeks meat-processing factory was at one point used as a holding centre or concentration camp, at which it is alleged that victims’ bodies were disposed of by feeding them through the machinery;5 other factories’ incinerators had been used to burn victims’ bodies. During the war, the population of Brčko town had shrunk from 41,000 to less than 15,000. The town was full of empty houses, rendering it liable to an internationally driven process of returning Bosniac and Croat refugees. To prevent this, the RS government had ensured it became the resting place for an estimated 30,000 Serb refugees from the Federation and from Serb Krajina. (The Republic of Serb Krajina was ‘liberated’ by Croat forces in August 1995 in a military campaign, called ‘Operation Storm’, that resulted in the mass eastward exodus of Serb civilians.) Serb refugees had therefore been guided to Brčko in an attempt to secure Serb dominance of the town and were residing in expelled citizens’ homes.6 Serb politics within Brčko were particularly extreme because displaced persons comprised a significant proportion of the post-war political elite in the town and, as a consequence of the hardships they had endured, tended towards hard-line nationalist political opinions. The main road from Tuzla to the Croatian border ran through the south west of the Brčko opština, from south to north passing through the Federation, then Federation-controlled Brčko, then RS-controlled Brčko, then the RS and once again the Federation.7 On that road, a huge informal market had emerged on the former front line soon after the end of the war. A front-line trading post had existed on the site during the war as a locus for smuggling and profiteering. The post subsequently developed into a market as the US military established a checkpoint there and permitted people to trade from vehicles on adjacent land. (Foreign peacekeeping

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troops established checkpoints at all official crossings over the IEBL.) Civilians on both sides of the ceasefire line could travel to the market without significant risk, due to the proximate US military presence. (In the period immediately after the war, there was very little civilian traffic across the former front line, because differing car licence plates in each Entity made highly visible targets for ethnically motivated acts of violence and police misconduct. OHR launched a nationwide system of neutral car licence plates in February 1998.) The market therefore became a meeting place for separated families and friends, and a locus for business and smuggling across the front line. The US army constructed a car park to accommodate the lorries from which traders were selling their wares, to prevent the main road from being blocked by the traders’ trucks. It subsequently came to be known as ‘Arizona market’ after the main road upon which it lies was named by US troops as the Arizona road. A large US military presence had been established just to the south of Brčko town, in the zone of separation. Camp McGovern, as it came to be known, initially housed more than 900 US troops. These troops were part of IFOR – the so-called ‘implementation force’. Their terms of operation were regulated by Article I(a) of Annex 1A to the DPA. IFOR was later renamed SFOR – the ‘stabilisation force’ – to honour (at least literally, if not in spirit) the commitment of then US President Clinton that IFOR troops would not be in BiH for more than 12 months. (The last US troops left Camp McGovern in March 2004 without significant local reaction, by which time the number of troops in the base was down to around 600.) The nine days of hearings in Rome that preceded the first award of the Brčko tribunal included extensive legal submissions about the permissible scope of the award the tribunal might issue and the types of consideration it ought to entertain in reaching its decision. Both the Federation and the RS submitted that the tribunal had a very narrow mandate. They both maintained that it had jurisdiction only to rule upon the position of the Inter-Entity Boundary Line in the Brčko opština. However, the types of argument that each side used in justifying their account of where the IEBL ought to lie were radically different.8 The Federation used self-determination and fairness arguments in support of its case that the Brčko opština should be awarded in its entirety to them. Its position was that Brčko was a predominantly Bosniac and Croat area before the war; and inequitable conduct of RS military forces in the area both during and after the war, in ethnic cleansing and maintaining ethnic partition, could not change the right of that majority to self-determination. By contrast, the RS used a form of consistency argument. It argued that the tribunal was bound to be faithful to certain other principles implicit in the DPA, principally that the agreement required the RS to be a viable political unit; but it could not be so without contiguous territory. The RS also advanced an argument that any territorial assignment of Brčko other than in accordance with the

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ceasefire line contained on the Dayton map would violate a pre-Dayton preliminary agreement called the ‘Agreed Basic Principles’, signed in Geneva on 8 September 1995, setting out the basis on which the Dayton negotiations would take place. The Agreed Basic Principles provided that the territory of Bosnia and Herzegovina would be divided between the Federation and the RS on a ration of 51 per cent to 49 per cent. Moving the IEBL in any way would upset that delicate compromise which, the Agreed Basic Principles says, can be changed only with the consent of both parties. This agreed basis of territorial division therefore precluded the tribunal from taking any territory away from the RS. Thus at the very least, the corridor north of the IEBL line on the DPA Annex 2 map and in fact controlled by the RS authorities (including Brčko town) must be awarded to the RS. There were also discussions at the hearings about the possibility of establishing an international regime in the Brčko area. The Federation supported the idea, perceiving any international presence to be favourable to its interests; the RS strongly disagreed, arguing that giving an international official authority within the Brčko area would be inconsistent with the Dayton Constitution.9 Tensions were extraordinarily high in the run-up to the First Award; Izetbegović threatened that he and all other senior Bosniac politicians would resign en masse if the tribunal’s ruling went against the Federation. The parties’ positions were diametrically opposed, and the Presiding Arbitrator noted that there was no possibility whatsoever for compromise between them. With the benefit of hindsight, it is easy to see why the parties could not compromise: for the Federation, splitting RS territory in two was essential to frustrate subsequent secession of RS territory to become a separate sovereign state; for the RS, territorial continuity was essential for precisely the same reason. But the argument that the limit of the tribunal’s jurisdiction was to pronounce upon the location of the IEBL in the Brčko opština, and therefore to determine which of the Federation and the RS would control which parts of the territory in the Brčko opština, was seemingly accepted by both parties to the arbitration. It was therefore all the more extraordinary that this argument was rejected by the tribunal in its first award, dated 14 February 1997. By the usual standards of international arbitration, this seems highly surprising: where the parties to an arbitration both agree that a dispute should be resolved in a certain way, the tribunal, being the product of the parties’ agreement, should respect the parties’ joint wishes.10 The fact that the tribunal felt bound to depart from both parties’ common understanding of its mandate was no doubt motivated by a number of factors. First, had the dispute and the scope of the tribunal’s remedy been given a narrow frame, it would have been irresolvable without one party clearly being seen to lose and the other to win. In that case, one or the other party’s strategic interests would have been seriously compromised. In circumstances where a brutal war had just

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been concluded and all participants remained heavily armed, a resolution of the dispute that favoured one party so completely over another might have precipitated renewed armed conflict.

9. The Brčko opština in December 1995. The villages of Brod, Brka and Gornji Rahić lie in Bosniac Brčko–Rahić, whereas Bukvik, Donji Skakava and the Arizona Market are administered as part of Croat Ravne–Brčko. North of the IEBL is Brčko town and the RS Brčko corridor. To the north of the River Sava is Croatia and the Croatian village of Gunja.

Second, Presiding Arbitrator Owen soon came to realise that the partyappointed arbitrators identified entirely with the positions of the parties that selected them and were completely unsusceptible to compromise or argument to the contrary. Therefore any resolution of the dispute along the narrow ‘winner takes all’ theory of the tribunal’s mandate would involve the Presiding Arbitrator voting with one of the party arbitrators against the other party arbitrator. There was no prospect of a unanimous decision on the narrow theory of the tribunal’s jurisdiction and an accusation of bias would be inevitable after any ruling. (The course the Presiding Arbitrator chose was to issue an award to which neither party-appointed arbitrator would accede, to avert allegations of bias.) Third, in the climate of hostility, suspicion and fear immediately following the war, any ruling in favour of one party or the other would result in the mass migration of citizens from the losing side away from the territory they lost, causing still further hardship beyond that suffered during the war itself. For all these reasons, best characterised as political pragmatism rather than legal logic, the

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tribunal (or more precisely, the Presiding Arbitrator) decided to cast its jurisdiction very broadly indeed, to escape the Scylla and Charybdis dilemma that faced it because of the narrow construction of its mandate. However, Owen did a fair job of characterising his jurisdictional decision in legal terms, arguing that the text of the arbitration agreement rendered the tribunal’s jurisdiction indeterminate, and therefore under the Vienna Convention on the Law of Treaties he could turn to ancillary evidence of the parties’ intent broadly to resolve that ambiguity. Article 32 of the Vienna Convention provides that ‘supplementary means of interpretation’ may be resorted to where the meaning of treaty terms are ambiguous or obscure. Relying on this principle, Owen made the following comments, in the Tribunal’s first ruling: …it is clear that the reason for the lack of a precise definition of the nature of the dispute was the widely divergent positions of the parties…The fact that the geographic scope and/or portion of the IEBL ‘in dispute’ is not precisely defined…underlines the magnitude and complexity of the dispute…It seems clear that the Tribunal’s jurisdiction was intended by the parties to be sufficiently broad to resolve the overall dispute that the parties placed before it…[This] must…mean that the Tribunal has the power to fashion a remedy representing a compromise between the parties’ extreme positions…The absence of any precise definition of the scope of the parties’ dispute is also at least partially explained by the fact that the issue of…Brčko came to a head only in the closing hours and minutes of the Dayton Conference. Negotiations on the point finally broke down as the Conference was about to end. Under the circumstances the definition of the exact scope of the dispute was left open, to be resolved through the process of arbitration.11 To give himself political latitude, Owen therefore had an interest in characterising the nature of the dispute as ambiguous, and the legal principles that should be used to resolve it as uncertain. But it is far from obvious that it was really so. There is a powerful argument that the scope of the tribunal’s jurisdiction was relatively clear – to locate the IEBL – and there were several relevant legal principles which Owen could have used to resolve the dispute narrowly but for reasons of expediency chose to pass over as quickly as possible. Both the Federation and the RS had advanced compelling arguments that Owen was keen not to consider; had the tribunal really wanted to resolve the issue before it in accordance with the most pertinent and internationally accepted legal doctrine, it had plenty of material to guide it. First, consider the Federation’s principal argument, which relied upon principles of self-determination and fairness. Historically, the Brčko area

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was always predominantly Bosniac and Croat. Had the people residing in the Brčko area prior to the 1992–1995 war been given the opportunity to decide whether they wanted to be part of the Federation or the RS in a referendum, nobody could seriously deny that they would predominantly prefer to be part of the Federation. Likewise, in the absence of another overriding legal principle determining the sovereignty of a territory, historical, cultural, political and demographic ties of the people of an area to another territory may create a presumption that the area ought to be treated as part of that territory: so it was decided by the International Court of Justice in the Western Sahara case (ICJ 1975). The Federation explicitly relied upon this case in its submissions to the tribunal (First Award para. 79). These principles combine neatly in this case with the principle ex injuria jus non oritur: one cannot ground a legal claim upon the consequences of one’s own unlawful act. This principle is widely acknowledged as what international lawyers call jus cogens:12 that is to say, a peremptory norm of international law recognised as universally applicable to all nations. In international law this principle is applied to acts of unlawful military aggression to preclude an aggressor from asserting sovereignty or another legal right over territory that has been conquered by force. It was explicitly acknowledged as applicable to the conflicts in the former Yugoslavia by the UN Security Council (UN 1993a). If the historical ethnic composition of the Brčko area was predominantly Bosniac and Croat, and that would engage the Western Sahara principle of self-determination in guiding the tribunal on the final disposition of the territory, then that principle cannot be undermined because RS military and paramilitary forces conducted an appalling and unlawful campaign of ethnic cleansing of those Bosniacs and Croats to render the territory ethnically purely Serb. Why then did the tribunal not follow this comparatively straightforward piece of legal argument and award the Brčko territory to the Federation? The reasons of course were ones of political expediency: doing so would cause another war. In the run-up to the issuance of the First Award, both sides were making more or less veiled threats about military conflict in the event of an adverse ruling. To quote Bildt (Bildt 1998, Chapter 17) once more: I recall TV broadcasts in both parts of Bosnia on 18 December [1996]. The recently appointed commander-in-chief of the VRS appeared on the screen to say that the army was fully prepared to defend Brčko, and that people who were playing with various ideas about the future of the town should be aware of this. In Sarajevo, Izetbegović explained to the viewer, somewhat obscurely, that everyone would know what they had to do about Brčko when the time came.

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Although the reason the tribunal declined to accept the Federation’s argument was therefore political, it is interesting to note the legal grounds on which it justified so doing. Owen rejected the Western Sahara argument because of the: unique demographic diversity of the Brčko area before the war …both Entities have established extremely close ties to the area…which suggests not that one party or the other should enjoy exclusive control of the area, but that both should play a role in the future control of the area. (First Award para. 79) The tribunal rejected the ex injuria jus non oritur argument on the grounds that: [t]he purpose of the RS campaign…was to wrest sovereignty from the Republic of Bosnia and Herzegovina, not from the Federation, which did not even come into existence until well after the RS conquest…Consequently, the injured party – to whom…the doctrine would require restoration of control – is the Republic of Bosnia and Herzegovina, not the Federation. But the GFAP already has confirmed that the Republic (now renamed) has sovereignty over the entire territory of the country. The particular injury for which redress is demanded under the non-recognition doctrine has thus already been remedied. (First Award para. 78) Owen’s arguments were ingenious in giving the tribunal scope to fashion a more flexible solution to the issue before it. But the Federation’s legal position was considerably more powerful than Owen gave it credit for, and it probably did not deserve to be written off quite as quickly as it was. As to the Western Sahara argument, only 21 per cent of the pre-war population of Brčko was Serb. 69 per cent was either Bosniac or Croat. Had the tribunal faced squarely the choice the parties seemingly intended to place before it – making Brčko part of the Federation or part of the RS – on Western Sahara principles it was far more appropriate that it be assigned to the Federation. As to the ex injuria jus non oritur argument, Owen overlooked the fact that the war in Bosnia and Herzegovina was not exclusively internal. Bosnia and Herzegovina had been internationally recognised as independent and was invaded by the Yugoslav National Army, which sought to keep the territory part of the FRY. The RS military forces and associated militias, that occupied and ethnically cleansed Brčko, were pursuing the same political purpose: maintaining through aggression a political union that was not internationally recognised and retaining territory for a ‘Greater Serbia’ project, from which non-Serbs would be expelled. The conclusion that this wrong had been remedied by the GFAP, providing for a mono-ethnic Serb

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mini-state within the boundaries of Bosnia and Herzegovina, is more than a little galling. The truth is probably that Owen passed over these arguments as briefly as possible precisely because he appreciated their force and the impossible restrictions that would be placed upon his options if he acknowledged the strength of them. Consider also the RS’s argument, on the basis of the Agreed Basic Principles. Owen rejected this submission even more swiftly than he did that of the Federation, on the basis that the 51:49 principle was not legally binding because it was not formally incorporated in the DPA itself.13 But this was too quick. The DPA itself reiterates that the parties to it ‘affirm[ ] their commitment to the Agreed Basic Principles issued on September 8, 1995’,14 making an interpretation of any provision of the GFAP inconsistent with the Agreed Basic Principles most implausible. This is particularly salient in light of Article 31 of the Vienna Convention on the Law of Treaties, which provides in relevant part: 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object or purpose. 2. The context for the purposes of interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) any agreement relating to the treaty which was made between all the parties in connection with the conclusion of the treaty;… Article 31(2)(a) fits the Agreed Basic Principles neatly. It seems far from clear that Owen was entitled to dispose of the Agreed Basic Principles as quickly as he did. As shall be seen, the end result Owen arrived at might have been consistent with the Agreed Basic Principles, but it is not credible to say, as Owen did, that the Agreed Basic Principles did not act as a constraining factor upon the decision the tribunal had to make. In the event, Owen refused to acknowledge the force of the arguments of either the Federation or the RS, and took a remarkably different course from that sought by either Entity. The remedy he created in the tribunal’s first award was a creation all of his own and was not something sought by either party in their submissions. Owen decided to defer a decision on the Brčko area’s status until a later date, and in the meantime to create a monitoring and enforcement mechanism in the area for the obligations that the Entities had undertaken in the DPA to facilitate refugee return and freedom of movement. Owen noted with particular concern that the RS had made statements at the Rome hearings suggesting it did not intend to observe its obligations fully under the DPA within the Brčko opština territory under its control.15 First, the RS had implied that free movement of Federation citizens within RS Brčko would be confined to the Arizona

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road, whereas the BiH Constitution and the DPA required complete freedom of movement for all persons throughout BiH.16 Second, the RS had stated that although compensation would be forthcoming for Croats and Serbs displaced from RS Brčko, return of refugees, required by Annex 7 to the DPA, would not be permitted.17 In the tribunal’s first award, Owen therefore sidestepped the impossible choice of awarding the area to either of the two Entities. Instead he used the goal of securing DPA compliance as a pretext to make a broad range of rulings and issued an award quite without judicial precedent. The tribunal’s first award of 14 February 1997 (ILM 1997) contained the following principal components. (1) It created an international civil servant, the ‘Brčko Supervisor’, to ‘supervise Dayton implementation’ and ‘strengthen local democratic institutions’ in the Brčko opština. This was a complete novelty by the standards of international arbitration. The DPA was an international treaty and contained its own enforcement mechanisms.18 The first award of the tribunal created a new enforcement tool for the DPA, confined to a single area; the role of the Supervisor was to enforce the DPA and indeed the tribunal’s award itself. It is without precedent that an arbitration tribunal creates its own officer to enforce its awards; international arbitration relies upon domestic courts and institutions for enforcement. (2) The Supervisor would have extraordinary powers. He would have ‘authority to promulgate binding regulations and orders’ that ‘prevail as against any conflicting law’; ‘[a]ll relevant authorities, including courts and police personnel’, would obey and enforce those orders.19 There was no express limitation on the scope of these powers, the areas in which they could be exercised, the purposes for which they could be used or the legal instruments with which they had to be consistent. The First Award does not even explicitly require that the Supervisor’s orders be consistent with the Constitution or the Dayton Peace Accords. Moreover, it provides for no mechanism by which those orders may be subject to review. The Supervisor therefore became a legislative dictator, capable of overriding all domestic legal instruments and without any apparent right of recourse or review available for those dissatisfied with or harmed by the orders he made. In time, Supervisory Orders and the awards of the Tribunal have become an integral component of the domestic legal order of Brčko District (the new political unit that the tribunal eventually ordered the Supervisor to create; see Chapter Five). It became a rapidly observed convention that District courts and the District Police would enforce Supervisory Orders over all conflicting law, without questioning the legal basis for those orders. (One attempt by the Basic Court of Brčko District to subvert the meaning of a series of Supervisory Orders on privatisation, in a corrupt conspiracy with the Constitutional Court of Bosnia and Herzegovina, caused a serious political incident: see Chapter Seven.) By

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amendments to the Statute imposed by Supervisory Order dated 2 February 2007),20 Supervisory Orders were explicitly incorporated into the District legal system: the revised Statute provides that Supervisory Orders override even the Statute itself (Article 1(6)) and all courts in the District are bound to strike down inconsistent legal instruments or acts (Article 40).21 (3) The Supervisor would have broad authority over the police in the Brčko area and would take measures to ensure return of refugees, local elections, economic revitalisation, the reopening of Brčko port, establishing customs procedures and reopening the border crossing with Croatia.22 It would be quite a stretch to find mandates for all these goals within the text of the DPA. The Supervisor would thus have authority to pursue goals exclusively of the tribunal’s making, which in no sense followed from the arbitration agreement giving the tribunal its jurisdiction, nor the broader agreement of which the arbitration agreement was part. Indeed the First Award veers close to being inconsistent with other parts of the DPA. The port and customs procedures are stated elsewhere in the DPA23 to be competences of the state, subject to management by the joint institutions, not matters of local control over which it would be appropriate for a Supervisor of a local area to take responsibility. (4) The award implies that it is interim, but does not explicitly state that any further order will be forthcoming. Supervision is stated to last for ‘not less than one year’, but no longstop date is given. The award states: [a]bsent further action by the Tribunal, the IEBL in the region will remain unchanged…the Tribunal will entertain from either party requests for further action affecting the Award with respect to the allocation of political responsibilities in the area, provided that any such requests must be received between 1 December 1997 and 15 January 1998.24 The implication seems to be that if no party made a further request within that window, the IEBL would stay where it was and ‘supervision’ would continue indefinitely. (5) However, the award does hint at the final decision on the Brčko area’s status that the tribunal eventually made. Auspiciously, it says: in the event of a request for modification of this Award, the Tribunal may at that point conclude, in light of the then-current situation, that to correct the situation the Town of Brčko must become a special district of Bosnia and Herzegovina in which district the laws of Bosnia and Herzegovina and those promulgated by local authorities will be exclusively applicable.25

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This is exactly what happened subsequently. With the benefit of hindsight, it is clear that Owen had a vision for Brčko in his mind from an early stage. (6) The tribunal also makes a few tentative remarks about the method it would employ in determining the final status of the Brčko area in any subsequent proceedings before it. Saying that ‘the Tribunal must be concerned with such GFAP principles as…liberty of movement and residence…and the right of safe and voluntary return for refugees and displaced persons’, it concluded: [i]n considering how to fashion a solution to the instant dispute that is consistent with these principles, the Tribunal must review the facts as to whether these principles are now being honored in the disputed area, and how such compliance might be assured in the future.26 In other words, ‘the Award essentially put the parties on notice that in any further proceedings the Tribunal would pay close attention to the parties’ subsequent [Dayton] compliance records’.27 The single signature Only the Presiding Arbitrator Owen signed this award; both party-appointed arbitrators refused to sign. Although Owen swiftly disposed of this inconvenience and concluded that he was entitled to sign the Award on his own, the precedents to which he appealed in justifying this course had not gone nearly so far. He relied upon precedents that a tribunal may proceed even where an arbitrator refuses to sign its decisions.28 But the legal precedents he relied upon29 are questionable analogies: they all refer to circumstances where only one arbitrator out of three fails to sign an award, not where two out of three fail to do so. It is one thing where arbitrators vote to adopt an award by a majority, so that one arbitrator is outvoted; it is altogether another where a majority of arbitrators vote to reject an award but the Presiding Arbitrator unilaterally adopts it nonetheless. Owen maintained that the parties to the arbitration agreed to modify the UNICTRAL rules to allow him to do this. Paragraph 5 of the First Award states that ‘It was understood at Dayton, as subsequently confirmed in writing, that if a majority decision of the Tribunal is not reached, the decision of the presiding arbitrator will be final and binding on both parties.’ A footnote to that paragraph continues: ‘The Presiding Arbitrator received letters to this effect from the heads of the delegations of both parties to the Dayton talks and has subsequently discussed this matter with counsel without dissent from anyone.’ This raises more questions than it settles. First, if ‘it was understood at Dayton’, why was that understanding not recorded in the agreement to arbitrate? Mere ‘understanding at Dayton’ could not amend the arbitration agreement without violation of the Parol

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evidence rule, one of the most fundamental rules of contract law. The Parol evidence rule states that where an agreement is written down, only what is written down counts; side-understandings, not recorded in contemporaneous documents, are irrelevant. The thought underlying the rule is that where the parties have taken the trouble to formalise their agreement in a written document, it is in the interests of legal certainty that the document prevails, and its contents cannot be subsequently challenged by allegations of ancillary understandings of the kind Owen refers to: verbal agreements which invite conflicting and irresolvable accounts of who said what. Second, reference to ‘both parties to the Dayton talks’ is more than a little odd. There were more than two parties. There were in fact five parties to the DPA: the Republic of Bosnia and Herzegovina, the Republic of Croatia, the Federal Republic of Yugoslavia, the Federation of Bosnia and Herzegovina and the Republika Srpska. Different annexes to the DPA were signed by different parties. Annex 2 to the DPA is expressed to be an agreement between ‘the Republic of Bosnia and Herzegovina, the Federation of Bosnia and Herzegovina and the Republika Srpska (the ‘Parties’)’, and Article V(3) of Annex 2 provides that ‘[u]nless otherwise agreed by the Parties, the proceedings shall be conducted in accordance with the UNCITRAL rules.’ The consequence of this is surely that it would take the agreement of these three parties to change UNCITRAL Rule 31(1) requiring tribunal decisions to be taken by a majority of arbitrators. However, the letters received by Owen were signed only by Slobodan Milošević (President of Yugoslavia) and Alija Izetbegović (by then one of the three Presidents of Bosnia and Herzegovina, the legal successor under the DPA to the Republic of Bosnia and Herzegovina). It is unclear how either of these individuals could bind the three ‘Parties’ to the Annex 2 arbitration agreement. Different individuals signed the DPA annexes on behalf of each of the Federation of Bosnia and Herzegovina, the Republika Srpska, the Republic of Bosnia and Herzegovina and the Federal Republic of Yugoslavia, undermining any argument that Milošević and Izetbegović had some kind of authority to sign on behalf of either Entity.30 But ultimately there was no alternative save disaster. Bildt summed up the mood of the international community to the arbitration process when he said: It turned out that the Americans had received a document from Milošević in which he gave Roberts Owen a free hand to take a unilateral decision if the tribunal failed to reach agreement… Personally, I wondered about the legal aspects of this arrangement. The parties who had signed this section of the Peace Agreement were the former Republic of Bosnia and Herzegovina, the Federation and the Republika Srpska. Although it had approved the document, the former Yugoslavia, and hence Milošević, was not a party to it. But, power and necessity are sometimes a law unto

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themselves, and we were faced with a situation in which the articles and clauses did not help much anyway. Providing that, de facto, everyone accepted the results of the process, there was no cause to become involved in legal discussions about what had really happened. (Bildt 1998, Chapter 17) Owen himself has explained his authority to sign the tribunal’s awards unilaterally in the following terms: Izetbegović…and Milosević…had agreed that the arbitration should be done by a single arbitrator, me. Shortly after November 21 [1995, the last day of the Dayton negotiations] that fact was confirmed to me personally by Secretary of State Warren Christopher, by Dick Holbrooke, and by both Izetbegović and Milošević. But when I was asked on the morning of November 21 to draft an arbitration clause, nobody had yet told me that the parties had agreed to a single arbitrator, and in the next several minutes I drafted a clause which contemplated the customary three-person panel. When my superiors and the parties reviewed the clause they made no comments on the three-person arrangement, apparently regarding it as a formality which would not interfere with my decision-making function, and, as you know, the single-arbitrator-decision approach was fairly shortly confirmed by letters from both Izetbegović and Milosević. 31 Perhaps Owen’s best argument in favour of amending the UNCITRAL rules, to allow him to issue awards unilaterally, was the failure by any party to the proceedings to object promptly after the first award in which he did so. Article 30 of the UNCITRAL rules provides that: A party who knows that any provision of, or requirement under, these Rules has not been complied with and yet proceeds with the arbitration without promptly stating his objection to such noncompliance, shall be deemed to have waived his right to object. No objection ever was made by either Entity to the unilateral signature of the First Award by Owen. This was surprising, because the RS’s lawyers had (but passed up) an opportunity to sink the entire tribunal process at the earliest stage. As a result, an extraordinary new legal principle emerged. Owen had cited cases in which an arbitration tribunal had been permitted to proceed where one arbitrator out of three had refused to participate. But in no prior case had two out of three arbitrators ever refused to sign an award that was nonetheless issued.32 The first award of the tribunal therefore set a remarkable precedent: where none of a three-arbitrator panel can agree, the chairman of the tribunal may unilaterally issue an award without

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reference to the others. The Brčko Tribunal’s first award is legal authority for the proposition that the chairman of an arbitration tribunal has significantly greater powers than his wing members. Presumably each of the wing members had a clear idea of the type of award they wanted to see issued. But the Presiding Arbitrator’s decision prevailed, merely because he was the Presiding Arbitrator rather than a party-appointed arbitrator. It seems unlikely that this precedent will be followed by future arbitration tribunals, save in the most exceptional circumstances of the kind that occurred in the Brčko arbitration. But a little piece of legal history was made by Owen and he may earn a paragraph in future arbitration textbooks on this issue alone. It is also worth noting that the rest of the international community was showing some degree of discomfort with Owen’s ruling even before the first Supervisor arrived. The Peace Implementation Council (PIC), a regular meeting of civil servants from the foreign ministries of countries contributing to the Bosnian peacekeeping efforts, met on 7 March 1997 and produced a document entitled ‘Chairman’s Conclusions’ of the ‘Brčko implementation conference’ (OHR 1997a). In this document the PIC sought to limit the scope of the First Award in a number of ways. It sought to confine the geographical area of Supervision to an area not referred to in the First Award. Paragraph 1(3) of the Chairman’s Conclusions stated that ‘in accordance with the arbitration award, Supervision shall cover the parts of the original Brčko opština located within the Republika Srpska and, in the case of the insurance of freedom of movement, shall extend up to and include the Donja Mahala–Orašje road’, although the First Award said no such thing. The PIC then sought to limit the powers of the Supervisor to a scope narrower than they are framed in the First Award. Paragraph 1(4) of the Chairman’s Conclusions stated that ‘the Supervisor has the power to overrule orders or regulations which are in violation of the Peace Agreement, the Constitution of Bosnia and Herzegovina or otherwise directly and obviously run contrary to the supervision mandate’, although again these words appeared nowhere in the First Award, which did not place any explicit restriction on the circumstances in which the Supervisor could overrule domestic legislation. Paragraph 1(5) of the Chairman’s Conclusions also provided that the Supervisor would use his powers only ‘in coordination with the High Representative’, but it is not clear what that means. It seems that successive supervisors have mostly ignored these injunctions by the PIC and the Chairman’s Conclusions rapidly became a forgotten document that was subsequently seldom referred to. But the fact that the PIC attempted to limit the First Award might be interpreted as evidence of early concern by the international community that Owen was acting with a degree of independence they found uncomfortable, and that the Supervisor might become a source of authority independent of the High Representative.

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The dispute about the geographical scope of the Supervisor’s powers initially remained dormant, because in the first stages of supervision there was little reason to do much south of the IEBL. The perceived problem was north of the IEBL and how to deal with the RS authorities enforcing ethnic segregation in Brčko town. Moreover, it was never realistically anticipated that the tribunal would order the IEBL to be moved south, and there was very little demand for Serb returns to the villages south of the IEBL. But it is also interesting to note that the tribunal’s First Award does not define the area under supervision, using the phrase ‘throughout the Brčko area’ to describe the Supervisor’s geographical mandate.33 Owen’s aim in using this ambiguous formulation may have been to give the Supervisor maximum flexibility to interpret the extent of his own mandate as political expediency allowed. By the time of the tribunal’s Final Award in March 1999, it had decided that ‘the responsibilities of the Supervisor must now be expanded geographically’,34 implying that prior to the Final Award those powers were geographically more limited than they subsequently came to be. However, even the Final Award does not explicitly state what the new geographical extent of the Supervisor’s mandate is. The common understanding is that it is the territory of the District, but perhaps prior to the Final Award it was something less than that. One party – the Federation – did subsequently seek a further order from the tribunal within the time frame stipulated in the First Award. But before recounting what happened as a result, we must turn to the institution, and personality, of the first Brčko Supervisor and study the way he came to use his extraordinary powers.

4 THE BEGINNINGS OF SUPERVISION

The way in which the Supervisor was appointed was typical of the ad hoc way in which things are done in the world of international relations. The Brčko Tribunal had directed the High Representative to establish ‘an office and staff in Brčko under the leadership of a Deputy High Representative for Brčko (…‘the Brčko Supervisor’…)’.1 Owen had formerly worked for the State Department and was a lawyer practising in Washington, DC. He had been chosen as arbitrator because of his relationship with Richard Holbrooke. Brčko therefore immediately became an American project. No arbitrator with any other background could have directed the High Representative to do anything. Owen clearly had the arrangement preagreed with the State Department: they would find a Supervisor and would fund the position. OHR would fund the other staff and fit the Supervisor’s office into their administrative framework, because the Americans required it and they were major contributors to OHR’s budget and to IFOR. It is unthinkable that Owen had not consulted with his former colleagues in the State Department before issuing the First Award; the award required the State Department to immediately find a senior official to occupy a foreign diplomatic posting the award had created, and pay for it, and expend political capital in persuading the Europeans to accept it. The fact that the Presiding Arbitrator had consulted with the State Department prior to issuing the award goes to underscore the highly political nature of the arbitration process. Any Presiding Arbitrator consulting and negotiating with civil servants in Washington, DC before he issued his decisions would be occupying a most unusual role. In practice the United States State Department therefore selected and appointed the first, and every subsequent, Supervisor. A US foreign service officer involved in early peacekeeping efforts in Bosnia and Herzegovina, Bill Montgomery, selected the first Supervisor from his professional contacts, telephoning him when he was on another mission in late February 1997. Although one might imagine that the High Representative is responsible for appointing and managing his deputies, this Deputy would turn out to be rather unusual, with a striking degree of independence from his

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supposed boss, a fact that was the catalyst for much subsequent acrimony. Successive High Representatives have never been given any real choice by the Americans about the individual they have selected for the post each time, and the Brčko Supervisors have considered themselves accountable to the State Department and the tribunal, not to OHR. In March 1997 the PIC announced the appointment of US Ambassador Robert W. (‘Bill’) Farrand as Supervisor, and stated that he had been appointed to the post by the High Representative (OHR 1997a). But this was the first in a long series of legal fictions about the institution of the Supervisor. The High Representative never issued a formal document appointing Farrand; or, if he did, Farrand was never informed of it or given a copy, and there has never been a formal legal instrument by which any successive Supervisor has been appointed either. Thus in practice the Supervisor was quite independent of his supposed superior. Although this seemed not to trouble Carl Bildt, the first High Representative, it would come to dog the Supervisor’s relations with Bildt’s successors. The Supervisor’s office would be administered as part of OHR and took the name ‘OHR North’. A tension emerged between OHR North and the staff of OHR Sarajevo after just a few months. OHR Sarajevo saw OHR North as a satellite office, subject to its direction. After initially close cooperation with Bildt’s staff, Farrand in time came to see his mandate as independent and resisted attempts at direction from his colleagues in OHR Sarajevo. Farrand was a tough man and faced a tough job. He arrived in Brčko on 11 April 1997 with a ‘close protection unit’ (i.e. diplomatic bodyguards) and two deputies, one British (Ian McLeod) and one Russian (Genady Shabbanikov). The nationalities of these individuals were chosen to maintain a perception of even-handedness, as the countries from which they came were seen as being more pro-Serb than the United States. OHR North took a building in the centre of town, close to the Zone Of Separation, and fitted it with iron bars and anti-grenade netting. Farrand’s office soon grew to a considerable size. In an illuminating indication of its priorities, the office initially had no legal department, although by the time of the ‘Final Award’ of the Brčko Tribunal in March 1999 (of which see Chapter Five), a legal department would have developed to employ more staff than any other. With funds provided both by the US State Department and OHR, Farrand rapidly recruited local staff on an ad hoc basis (the most fundamental qualification for which was that they spoke English) and, more gradually, international staff. Almost all the local staff initially recruited were Serb, because only Serbs were prepared to work in RS Brčko, such was the climate of hostility against other ethnic groups. At the time OHR Sarajevo objected strongly to what they saw as ‘ethnic bias’ by OHR North in its recruitment decisions, although this was somewhat hypocritical: Sarajevo was an exclusively Bosniac city, all the Croats and Serbs residing there before the war also having left or been expelled. OHR Sarajevo’s staff

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were accordingly almost exclusively Bosniac. When challenged to find Bosniacs prepared to work in OHR North, the OHR Sarajevo officials quietly dropped their complaints. However, this dispute set the scene for an interesting development in the domestic perceptions of OHR. OHR was always seen as a pro-Bosniac institution: it had its principal office in Sarajevo, the majority of its staff were Bosniac, its international staff were constantly bombarded with the Bosniac wartime and post-war political narrative and it existed to enforce the Dayton Peace Accords, which meant maintaining the territorial integrity of a Bosniac-dominated central state against Croat and Serb secessionist movements. This was an essentially Bosniac political aim. By contrast, OHR Brčko came in time to be seen by domestic politicians in much more ambiguous terms. Although initially its mandate was clearly ‘anti-Serb’, in the sense that it was taking measures against Serb authorities in the Brčko area to reintegrate displaced Bosniacs and Croats, Bosniacs eventually became hostile to the Supervisor through a perception that he was not moving fast enough to restore pre-war Bosniac dominance in the Brčko area. The Supervisor became seen as excessively accommodating to Serb interests and this perception was reinforced by the predominantly Serb composition of the staff in the Supervisor’s office, a feature that remained for as long as the office was in existence. Brčko was a rough place when Farrand arrived. War damage was extensive. Only a fraction of the town’s pre-war population remained, Bosniacs and Croats having fled or been expelled or murdered, and many Serbs having also fled due the town’s proximity to the front line. Much of the residential accommodation bordered on the uninhabitable. Large parts of town had no access to running water or electricity. The town was full of RS troops, who were sent to the former Yugoslav national army barracks in the centre of town before it was demobilised. (That barracks was subsequently transformed by a USAID project into the new District court complex.) There were no jobs for all these former troops and unemployment was rife. Financial desperation, and the presence of a number of foreigners, resulted in the town being awash with prostitution. A lot of weapons went missing, secreted away by decommissioned troops. (On one notorious occasion, a tank was found hidden in a village barn.) US troops had been in place since they arrived in Bosnia on 20 December 1995. Those troops were bound to maintain the fiction that their mission was only short-term, in line with US President Clinton’s commitment that US military intervention in Bosnia would be limited to a one-year time scale, so they slept in tents and did not construct a permanent barracks. (They in fact left in 2004.) The American troops exhibited great shows of overwhelming force, patrolling in four vehicle convoys with two helmeted machine gunners. The fact that they were all over the area like a rash helped to keep the extremely high tensions down. Farrand exercised considerable de facto authority over the US troops; in practice the local SFOR commanders

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would almost always look favourably on his requests for their assistance. Farrand’s deputy, Genady Shabbanikov, had the same de facto authority over a Russian airborne brigade at Ugljevik, in RS territory to the south east of Brčko. (This brigade had a significantly shorter lifespan than the US troops in Camp McGovern and left in late 1999, shortly before the formation of the District.) The citizens from all three segregated municipalities were haunted by the recent war, and the town was littered with sites of massacres.2 ‘Special’ and ‘secret’ police units, controlled directly from the then Bosnian Serb capital Pale, were present throughout the town. (SFOR subsequently came to detain any such officers caught in uniform or with a weapon.) The streets were full of potholes blown into them by mortars and grenades. On the main road south out of the town, across the ceasefire line and towards Bosniac territory, every building was flattened. In Brčko town itself, the Zone of Separation extended almost to the centre of town and the area within it was completely devastated, a maze of minefields and demolished buildings. For security reasons international staff were not allowed to go anywhere without an official car and driver and had to report their whereabouts at all times. These restrictions applied 24 hours a day. There were serious riots in August 1997, orchestrated by the RS authorities after an attempt by SFOR to wrest control of the Brčko police station from officials loyal to SDS in Pale and place it in the hands of individuals representing the more moderate forces of RS President Biljana Plavšić in Banja Luka. During these disturbances, UN cars were destroyed and OHR staff were virtually prisoners in their own compound. Farrand’s initial agenda was to commence a process for Bosniacs and Croats to return to their pre-war homes in the town and Serb-controlled areas, to secure freedom of movement (the town was extremely dangerous for non-Serbs, who could expect to be attacked on sight) and to start the process of reintegrating public institutions, at that point completely segregated. (Parallel Serb, Bosniac and Croat government institutions existed in each of Brčko town, and the villages of Brka and Seonjaci respectively.) Farrand had the full cooperation of the US troops at Camp McGovern, who would come to his assistance whenever requested. With that level of military backing for the decisions he made, he soon became a formidable force to be reckoned with by the local political actors. Although these troops never had to be deployed to resist a serious military threat, their presence served to reinforce the authority of the international community in the area. Farrand developed a style of operation halfway between a mediator and a proconsul. He rapidly came to realise that the local politicians in charge of each of the Serb, Bosniac and Croat communities had worked with each other before the war, knew each other well and, if pushed, were prepared to work with one another again. However, they were in each case subject to strong political pressures not to cooperate

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from their national capitals. In 1997 the leading Serb politician in Brčko, Miodrag Pajić, was president of the rump District Assembly, consisting of those Serb councillors who had been elected in the 1990 elections and had not fled. Pajić was under constant pressure from the SDS government in Pale to do everything possible to resist the Supervisor’s attempts to reintegrate Brčko town, and threats were made against his family to keep him in line. He quickly established a cooperative relationship with Farrand and proved happy to work with him to reintegrate the town. But to give himself political cover with Pale, he refused to act without specific orders from the Supervisor. By December 1997 Pajić had been forced out by the SDS, suspected of being too cooperative with the international community. The very first of his appointed tasks to which Farrand turned was to start the process of returning Bosniac and Croat refugees to Brčko town. This was initially extremely tough due to Serb violence and intimidation and an absolute refusal of the RS authorities to cooperate with the process.3 At the time, the RS was an autocratic and criminalised police state. Intimidation and violence against returnees was orchestrated by the RS police and deterred minority returns to the town. Likewise, government institutions could easily be perverted to frustrate the returns process. The then RS President and indicted war criminal Radovan Karadžić had enacted an RS Law on Abandoned Property in February 1996, allowing RS municipal authorities to deem ‘abandoned’ housing from which Bosniacs and Croats had been expelled, following which displaced Serb families could be granted an indefinite right of occupation. Farrand’s first formal act established a multi-ethnic returns commission in charge of refugee returns, banned all new allocations of housing in the Brčko area without the consent of that commission and annulled all such allocations made since the tribunal’s award had been issued.4 The commission Farrand established therefore had to unwind all the effects of Karadžić’s law in the Brčko area. Its operation was initially a chaotic shambles and the RS authorities defied all order that Farrand attempted to insert into the returns procedure. Farrand had to issue his own ID cards to returnees because the RS authorities were refusing to issue non-Serbs with identity documents (OHR 1997d)5 Even as Farrand started relocating Bosniacs and Croats into town, Pajić continued resettling Serbs displaced from the Federation into villages north of the IEBL formerly populated by Bosniacs and Croats; this continued as late as October 1997. So as Farrand was moving in returnees, Pajić, on the instructions of Pale, was moving in more displaced persons. Serb displaced persons were themselves a particularly vulnerable group, relying on RS government food aid and housing allocations. These tools were used to secure the loyalty of Serb displaced persons to the RS political agenda. They could be expected to demonstrate or riot on demand. Refugee returns was a particularly sensitive issue, as it involved evicting Serb squatters in returnees’ homes, who in many cases would themselves

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have nowhere else to go. To ease Serb refugees’ concerns, Farrand announced as a foremost principle of his returns policy that no Serb would be evicted from the house of a displaced person until there was alternative accommodation made available to them in the Brčko area: in other words, nobody would be put out on the street. New apartments were constructed using international funds to house Serb displaced persons who would be required to vacate properties they were occupying as a consequence of the returns process. Albeit in fits and starts, returns did progress and by the end of 1997 an irreversible momentum had gathered. In 1998, approximately 95 per cent of refugee returns to the entire RS were to RS Brčko (at that time comprising a mere 2 per cent of the RS population). Even in 2001, by which time the refugee returns process was at its zenith elsewhere in the country, 25 per cent of the countrywide ‘minority returns’ – i.e. returns to areas in which the returnee is not a majority – had been to the Brčko municipality (Binnendijk et al. 2006), an area comprising just over 2 per cent of the population of Bosnia. The issue of how to measure the success of the refugee return project in Brčko became highly politicised and estimations of its achievements varied widely.6 No domestic political group wanted to acknowledge its success. The Federation wanted the RS to look bad when tribunal proceedings resumed, so they had no interest in recognising the level of returns achieved, preferring the narrative that the RS administration was unremittingly obstructionist. The RS did not want to acknowledge that their attempts to maintain ethnic purity of their territory were being undermined by international attention, because they would then appear to be losing the battle, and in their perception maintaining Serb ethnic dominance in Brčko was essential to keeping the RS in control of the territory. The case for depriving the RS of control over Brčko would be that much stronger if the population was significantly mixed. Finally, other members of the international community wanted to underplay the success of returns in Brčko, because it made them look bad: the rate of returns elsewhere in the country was pitifully low. One way this discrepancy was massaged was for UNHCR to deem, in its statistics, that returns to the Zone of Separation would not count. For Brčko, this was absurd: the ZOS extended 2km in each direction from the ceasefire line, but the distance from the ceasefire line to the border with Croatia was only 4.5km in Brčko town. The ZOS therefore extended almost into the centre of town, and for Farrand the ZOS was the natural place to start the returns process, particularly as Camp McGovern was in the ZOS and the US military could therefore provide a degree of security not available further north for returnees. By contrast, to make figures look better elsewhere in the country where it (rather than the Supervisor) was in charge of returns, UNHCR treated Bosniac returns to Croat areas as ‘minority returns’. These returns were far easier to achieve than Bosniac and Croat returns to Serb areas; since the Washington

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agreement, intra-Federation returns had been relatively straightforward, with the exception of a couple of hot-spots such as Stolac and Mostar. (For more on Mostar, see Chapter Nine.) Farrand also engaged in a series of initiatives to introduce multiethnicity to the RS administration in Brčko town. He compelled the RS municipal administration to include Bosniacs and Croats at its most senior levels7 and sought to extend multi-ethnicity to other levels of the public administration. This initiative faced a formidable financial obstacle: no international funds were made available to pay multi-ethnic staff imposed upon the RS municipal institutions. It was easy for the RS authorities to resist these initiatives on the grounds that the predominantly Serb taxpayers in Brčko should not have to pay for Bosniac and Croat officials, and wholesale dismissal of Serb officials to make way for a multi-ethnic administration was unfair and unrealistic. Moreover, because it was too dangerous for Bosniacs and Croats to live in Brčko town, or even drive across the IEBL with Federation licence plates on their cars, they had to be bussed into work each day under escort by the US military. In ordering reintegration of public institutions, Farrand was attempting a bold and dangerous experiment. Although the new officials were given offices and occasionally invited to meetings, they were mostly stonewalled and did no work. But it was a start, and the process of reintegration was gradual but inexorable. With the benefit of hindsight, it was only through sheer tenacity that it succeeded. Securing freedom of movement for Bosniacs and Croats within Brčko town was also initially exceedingly difficult. It was simply too dangerous for non-Serbs to travel into town and every time Bosniacs and Croats came into Brčko they would require an SFOR escort. In an attempt to break the taboo of ethnic segregation, a group of Bosniac refugees from Brčko visited OHR North in May 1997.8 Even though they enjoyed a heavy armed escort their bus was stoned and riots erupted outside the Supervisor’s office. The US army constructed a temporary road bridge to Croatia from the centre of town to encourage transit through the town, but the RS authorities sought to frustrate the attempt by imposing high road tolls and visa fees on people using it. Farrand therefore banned the collection of all fees at the bridge into town.9 But the problem of freedom of movement was not really solved until the Brčko police was reconstituted as a multi-ethnic force, a process which began by dictate of Farrand in October 1997.10 Farrand had a large international police contingent to assist him, the United Nations International Police Task Force, or UNIPTF (of which more in Chapter Six). From 1996 to 1999, 260 IPTF officers were stationed in the Brčko area11 and they were able to undertake close supervision of the District’s police force, which numbered not many more than the number of IPTF officers stationed to monitor them. The IPTF introduced a system of ‘certification’ of police officers as fit to work throughout Bosnia and

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Herzegovina. An officer would be certified after completing a training course and undergoing a background check. They could refuse certification to an officer, for example on the grounds that he was sus-pected of being involved in war crimes or otherwise had an unacceptable disciplinary or criminal record; this would effectively end an officer’s career. Used judiciously, this power gave IPTF enormous leverage to reshape the District police force in the way Farrand wished. Farrand had started multi-ethnic police patrols by the end of 1997. Once a degree of confidence was achieved in public security, problems of refugee return and freedom of movement became much easier, and the other public institutions were relatively easy to restructure. This was the start of a tremendously successful reform, as a result of which Brčko now has the most respected police force in the country. Salaries for officers were raised to levels significantly higher than in the Entities. The incidence of taking bribes (particularly common in connection with traffic offences, a widespread form of petty corruption amongst the police in Bosnia and elsewhere in the Balkans) is much lower in Brčko than elsewhere in the country. To this day, police officers in Brčko still patrol in multi-ethnic pairs. In 1998, the only 42 non-Serb policemen in the whole of the RS worked in Brčko, and by the end of that year the multi-ethnic police were working well. However, this result was bought at the cost of significant political expediency. In several cases, violent and unsuitable officers were permitted to remain in the multi-ethnic police force to maintain ethnic balance. Most notoriously, two senior Croat officers were found by IPTF report to have been guilty of serious human rights abuses, but were not removed from office because the multi-ethnic force was very short of Croats.12 These problems were symptomatic of the difficulty in finding Croats to occupy positions in multi-ethnic institutions. Most Croat refugees from the Brčko area had left for Croatia and, the prevailing political and economic circumstances in Croatia being superior to those in Bosnia, had not returned. But ethnic balance required that Croats were ‘fairly represented’ in multi-ethnic institutions nonetheless. Farrand also ordered ethnic reintegration of the judiciary and personally appointed the judges (OHR 1997h). This process turned out to be somewhat easier than dealing with the other branches of government, because there were no politically active figures within the judiciary and the relatively well-educated legal profession was more receptive to participation in a multi-ethnic environment. However, there was a financial stranglehold on the judiciary: no money was made available from the RS authorities to pay their salaries. EU funding was used to pay judges, but salaries were much lower than in neighbouring Federation cantons (as little as 10 per cent of the salary available in Orašje), the court building was dilapidated and had no heating, and working conditions were basic. Moreover, in part the heritage of the communist system, the judiciary was politically weak and its powers

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were far more modest than those of the police. It also did not help that OHR Human Rights Coordination Centre in Sarajevo was diverting the majority of available international funding for promoting rule of law to Neum, a remote and politically insignificant mono-ethnic coastal town in southern Herzegovina, on account of its proximity to the Croatian coast where the staff liked to spend their weekends. Perhaps the biggest problem, however, was that the court hearing appeals from the Brčko courts was based in the hard-line Bosnian Serb town of Bijeljina, 40 kilometres to the east of Brčko, and was populated exclusively by Serb judges with a reputation for deciding cases in an ethnically discriminatory fashion. So even if relatively impartial justice could be dispensed by the multi-ethnic Brčko judiciary at first instance, it was susceptible to subsequent reversal. The sorts of issues on which Farrand elected to use his powers had rapidly become very broad. In just six months, he had established precedents permitting him to vet and appoint public officials, restructure government administration, order public officials and private individuals to do things or refrain from doing them, even if inconsistent with domsetic law, and had OHR North conducting selected domestic governmental functions. Farrand had established sufficient legal authorities to describe Brčko as a US protectorate. It is astonishing to conceive that this is what the parties had agreed to in the text of the arbitration agreement. But this was now the situation on the ground: an internationally appointed official could make whatever orders he pleased that in his judgment advanced the goals of DPA implementation or the other aims mandated by Owen, and he had hundreds of well-armed and loyal foreign troops to enforce his dictates. Farrand has described his approach in the early days as a ‘game of chess’ with the intransigent local actors. He could call upon overwhelming military force if required, but his aim was to secure refugee return and ethnic reintegration of key government institutions with a minimum of civil unrest. It was a game of nerve. In executing refugee returns, he would deal with one street at a time, gradually moving into the centre of the town. Where the Serb presence was notoriously intransigent in a given area, he would ‘surround’ those Serbs with returnees on every side and go back to deal with them later. It was a gradual but inexorable process. Farrand was admired and loathed in equal proportion, but he rapidly acquired respect. As one international official working for him commented, ‘every time Bill Farrand spoke, everybody in the room would go silent and would listen extremely carefully to what he said. Everyone knew that his word was law.’ Two blips Lest early Supervision be perceived from the above account as an unqualified success, two early failures need to be mentioned to illustrate the limitations on international community intervention in this very sensitive

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period. The first are the municipal elections in Brčko in September 1997; the other is the notorious incident of the Meraje Church. The municipal RS elections in Brčko, on 13–15 September 1997, presented a major challenge to the Supervisor and the international community. Ensuring the proper conduct of elections was part of the Supervisor’s mandate, who was charged with ‘supervis[ing] Dayton implementation throughout the Brčko area’ (First Award paragraph 104.I.B). Under Annex 3 to the DPA, the Entities were under an obligation to hold free and fair elections. For domestic political reasons in the United States, it was imper-ative that the early post-war Bosnian elections were perceived as a success, so that Dayton could be shown to be working. There was US congressional pressure to withdraw American troops, and therefore it was important to demonstrate that the peace agreement was sustainable, to counter domestic critics of the American role in the country. OSCE (the Organisation for Security and Cooperation in Europe), who under Annex 3 to the DPA had broad powers to supervise the conduct of elections, had established an international quasi-judicial body, the Electoral Appeals Subcommittee (EASC), to sanction violations of elections rules. But OSCE’s head of mission Robert Frowick (an employee of the US State Department) twice overturned its rulings for reasons of political expediency on direct orders from Washington, reinstating SDS officials that the EASC had disqualified for electoral irregularities. OSCE became perceived as tainted, prepared to make improper concessions to nationalist politicians in the conduct of elections merely to ensure that some kind of electoral process, no matter how flawed, could be said to have been completed smoothly. The Bosnian elections in 1996 (national) and 1997 (municipal) were, most commentators now agree, quite premature.13 All newspapers and radio stations were controlled by political parties. There was no rule of law at all and ballot box stuffing was commonplace. In the 1996 elections, voter turnout had been recorded at 104 per cent. Fair elections could not be held in an environment in which there was no freedom of movement, no free press, no reliable voter registration records and mass electoral fraud. In the tense post-war political environment, elections merely reinforced the nationalist political parties that held all the levers of power during the war. Thus it was in Brčko. Electoral rules prepared by OSCE allowed voters who had been displaced to vote in their pre-war municipalities. Brčko Serb politicians were well aware of the potentially calamitous consequences of this rule for their political hegemony in Brčko town, so they made every effort to subvert the elections. Bosnian Serbs from the Federation were offered identity cards and houses if they registered to vote in Brčko. 31,000 Bosnian Serb refugees living in the Federal Republic of Yugoslavia were also registered to vote in Brčko. As all this came to light, on 12 June 1997 Farrand and OSCE ordered a complete re-registration of all voters and

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removed several officials responsible for voting registration. The chronology of subsequent events is sharply contested between different international officials present in Brčko at the time, but at least one participant recalls matters in the following terms.14 Realising the vote for control of Brčko town would be very close, on 28 August 1997 SDS orchestrated riots in Brčko town against the international community, in an attempt to increase their bargaining position and pressurise the international community in Brčko to overlook continuing attempts at electoral fraud. SDS then threatened a national electoral boycott. After intense negotiations between Frowick and the SDS leadership in Pale, OSCE Brčko found a last-minute error causing under-registration of 2,600 voters that were subsequently reinstated. In the end, SDS and the equally if not more extreme Serb Radical Party, SRS, captured over 50 per cent of the Brčko vote between them. (Croat representatives received hardly any of the vote, because HDZ instructed their supporters to boycott the election.) This was not one of the finest hours for the international community in Bosnia and Herzegovina and Frowick left Bosnia under a cloud soon after. The Meraje Church was an early incident in which a Supervisory Order was ignored with impunity, and the construction of this controversial Orthodox Church in a Muslim area of town remains a lingering source of resentment. In 1997 there was an attempt at cultural domination of Brčko by Serbs, by constructing monuments of an ethnically incendiary character. The first concerned a statue of Draža Mihajlović that appeared. Mihajlović was a Četnik commander in World War II. The Četniks were one of two principal armed groups in Yugoslavia resisting fascist occupation by the Nazi-aligned Croatian Ustaša. The Partisans, led by Tito (himself a Croat), were a multi-ethnic resistance movement inspired by communist ideology.15 The Četniks, by contrast, were exclusively Serb, loyal to the (Serbian) monarchy of the Kingdom of Serbs, Croats and Slovenes that governed Yugoslavia between World War I and II. Although ostensibly he was fighting pro-Nazi Croat forces, Mihajlović took the opportunity during the war to engage in the widespread slaughter of Bosnian Muslims, who were supposed to be the Serbs’ anti-fascist allies,16 and he was therefore a notorious hate figure amongst Bosniacs. On 8 September 1997 a statue of Mihajlović appeared in the centre of town, although he had no historical connection with Brčko. In a similar vein, soon afterwards a 15-foot high monument to the ‘Serb defenders of Brčko’ appeared in Brčko’s main square. (It remains there to this day, no agreement having ever been reached on where to move it, unlike the statue of Mihajlović which disappeared overnight in mysterious circumstances.) The Orthodox Church also commenced construction of a new church in Meraje, a Bosniac area of town on the main road south toward the ZOS. It would be the first building that Bosniacs crossing the IEBL and coming into town would see. By a Supervisory Order dated 19 September 1997, Farrand prohibited

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further construction of the ‘Meraje Church’.17 In a deliberate attempt to escalate the crisis, Serbs then dynamited the church’s foundations on 27 October 2007 and made a crudely fraudulent attempt to pin blame on Islamic extremists.18 The resulting press coverage threatened Serb civil unrest and so Farrand decided to intervene in construction of the church no further. The church was completed in violation of Farrand’s order and remains in Meraje to this day, an empty monument to nationalist sentiment with few patrons. It lingers on as an unhealed sore, even motivating Bosniacs recently to commence construction of a mosque in the predominantly Serb settlement of Esh in retaliation. Ultimately Farrand judged that had he used the US army to prevent the church’s construction, the resulting civil unrest would have set back the broader project of supervision. That was a risk he was not prepared to take. Comparison with the High Representative’s powers We should pause briefly to consider the precedent that was being set by Farrand for the use of international legal powers in post-war Bosnia. What Farrand was doing really was unique: he was exercising an international legal authority that had not existed since the Allied occupation of Europe immediately after the end of World War II. Initially his orders were rather crude, being simple written instructions, conveyed with a minimum of reasoning or legal explanation, not prepared by lawyers and published only sporadically if at all. (They would often just be pinned up in relevant public places, for example on the notice board outside the RS Brčko government building.) But Farrand hired an international lawyer in 1998 and gradually his orders acquired ever more legalistic qualities, until in 2000 they began adopting forms conventional to international legal instruments. From then on, supervisory orders set out the factual background to the issue of the order, the provisions of the awards of the Brčko tribunal on which the Supervisor was relying on issuing the order, a quasi-legal policy explanation of why the power was being used and a series of detailed operative paragraphs that gave unambiguous instructions. The order would state when it came into effect, when it would cease to have effect and when and how it should be published. Orders would be distributed to all the principal politicians in the District, the Entities and the state, and the courts. In effect they served as overriding international legislation, quashing contrary domestic legal instruments. The legal powers of the Supervisor have not been the subject of significant comment, principally because they were eclipsed by the legal powers that subsequently came to be exercised by the High Representative. Beginning in early 1998, the High Representative started exercising powers and issuing decisions in much the same way as the Supervisor had done. The High Representative was a more prominent international official, who

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reported to the UN Security Council and the PIC, and whose actions and statements frequently appeared as headline news within Bosnia. His powers extended to the entirety of Bosnia and Herzegovina, and therefore his actions attracted greater scrutiny. Moreover, he used his powers far more than did the Supervisor and in considerably more controversial circumstances. In an effort to rein in wayward Serb and Croat politicians determined to do everything they could to subvert the Dayton Peace Accords, successive High Representatives took to dismissing swathes of officials, imposing legislation and freezing bank accounts, whereas the Supervisor’s use of his or her powers has for the most part been relatively restrained. But the Supervisor’s powers came first and both officials came to exercise their powers in much the same ways. Decisions of the High Representative came to look like orders of the Supervisor and had a similarly broad scope. A brief detour is therefore appropriate to investigate the genesis of the powers of the High Representative and the relationship those powers had to the powers of the Supervisor. As mentioned in Chapter Three, Annex 10 to the DPA provided for creation of ‘a High Representative…to facilitate the Parties’ own efforts and to mobilize and, as appropriate, coordinate the activities of the organisations and agencies involved in the civilian aspects of the peace settlement …’.19 A list of the High Representative’s duties was set out in the Annex, but they comprised only a consultative, monitoring and reporting role.20 On paper, the High Representative seemed to be a talking shop with no real power and throughout the course of 1996 and 1997, the High Representative apparently had no formal powers of dictatorship or imposition and did not use any. His functions were limited to coordinating other international organisations’ work and monitoring and exhorting domestic officials to comply with their Dayton obligations. But things started changing in the middle of 1997, when the new High Representative Carlos Westendorp, who had replaced the first High Representative Carl Bildt in June of that year and had more support from the US State Department than his predecessor, decided to take a more forceful role. In August 1997 he ordered Serb and Croat radio and television stations to moderate their political propaganda, which on occasion had become extreme. To enforce these dictates US military radio transmission-jamming equipment was used to block Serb television broadcasts and IFOR troops occupied Serb transmission stations; in conjunction, the High Representative demanded that the entire board of a Serb radio and television station resign (Price 2000). None of this was done by formal legal act of the High Representative;21 it was rather a matter of the US military acting at the High Representative’s informal request. These measures were highly controversial, the High Representative being subject to significant criticism that his actions violated principles of press freedom. But Westendorp seemed emboldened by this display of

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power; and, as a result of his lobbying, the High Representative’s coercive powers would soon thereafter be formalised, giving the High Representative explicit unilateral powers of imposition. There was a perception by the High Representative and his office that nationalist politicians opposed to the DPA, particularly (but not exclusively) in the RS, were deliberately obstructing the country’s progress, and in 1997 there was little that could be done about it. A small group of PIC members (including the UK, France, Germany and the United States) therefore decided amongst themselves, on Westendorp’s recommendation, to increase the authority of the High Representative to force through reforms. Although this has never been acknowledged, the idea seems to have been motivated in part by the authority of the Supervisor, who had been exercising powers of imposition since April 1997 with apparent success. It appears that Owen’s bestowal of broad authorities upon the Supervisor, and the way in which Farrand exercised them, were significant catalysts in transforming the whole of Bosnia and Herzegovina into an international protectorate. Without that transformation, it is possible that the country would never have stayed together as a single sovereign territory and the RS would by now have seceded, possibly causing recurrence of military conflict. The powers the High Representative would come to hold suppressed much of the most extreme political rhetoric in the country, but in many ways deference to a higher international authority stagnated the process of post-war political reconciliation, and the underlying political atmosphere has not progressed in Bosnia since 1997. It remains an open question whether the RS will attempt secession once the High Representative’s powers are finally terminated; this question will be addressed more fully in Chapters Eight and Nine. The High Representatives would come to exercise their powers in the form of hundreds of ‘decisions’ over the subsequent years. These decisions transformed the political landscape of post-war Bosnia. In form and context they would look very much like Supervisory Orders, and they would turn the High Representative into a proconsul with broad dictatorial powers over the entire territory of Bosnia and Herzegovina. Just as Brčko was a regional protectorate run by the Supervisor, so the whole country would become a national protectorate run by the High Representative. The trigger event for this sea change was a meeting of the Peace Implementation Council (PIC) in Bonn in December 1997. The Peace Implementation Council was, and remains, a regular meeting of representatives of the various foreign governments with an interest in the DPA and who contributed troops to IFOR/SFOR and/or funds for the Office of the High Representative. The purpose of the PIC’s meetings is to monitor implementation of the DPA and to formulate international community policy for Bosnia and Herzegovina. The High Representative chairs meetings of the PIC, but the PIC is not mentioned in the DPA. Indeed with one exception, 22 the PIC has no formal legal powers set out anywhere and

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it seems to have created itself. The legal act establishing the PIC was a meeting of the PIC itself, in London on 8 and 9 December 1995 (OHR 1995).23 But this did not prevent it from issuing an extraordinary declaration at its meeting in Bonn on 10 December 1997. It said: The Council welcomes the High Representative’s intention to use his final authority in theater regarding interpretation of the Agreement on the Civilian Implementation of the Peace Settlement in order to facilitate the resolution of difficulties by making binding decisions, as he judges necessary, on the following issues: … (b)

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;

(c)

other measure to ensure implementation of the Peace Agreement throughout Bosnia and Herzegovina and the Entities, as well as the smooth running of the common institutions. Such measures may include actions against persons holding public office or officials who are absent from meetings without good cause or who are found by the High Representative to be in violation of legal commitments made under the Peace Agreement or the terms for its implementation.24

To understand how the PIC felt able to make such an unusual declaration, one must study the text of Annex 10 to the DPA. Article II.1(d) of Annex 10 states that the High Representative shall ‘facilitate, as he judges necessary, the resolution of any difficulties arising in connection with civilian implementation [of the DPA]’. Article V of the same annex states, even more cryptically, that ‘the High Representative is the final authority in theater regarding interpretation of this Agreement on the civilian implementation of the peace settlement.’ The PIC seems, in its Bonn declaration, to have inelegantly combined these two provisions in what can be most generously described as an ‘interpretation’ of them – in other words, the PIC is asserting that these articles of Annex 10 permit the High Representative to do the things listed. The High Representative subsequently interpreted paragraph (b) of the PIC’s declaration as giving the right to impose legislation without the usual democratic procedures;25 paragraph (c) was interpreted as including the right to dismiss officials from public office on any (or no) grounds and without due process: that is to say, without any right to hear the evidence against oneself, to mount a defence or to appeal

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to a court. Following the location of the meeting at which they were created, these became known as the ‘Bonn powers’. The first occasion on which a law was imposed without parliamentary enactment was the High Representative’s Decision imposing a national flag in the face of the inability of the state Parliament to agree upon a design (OHR 1998a). The first dismissal was the Decision removing Pero Raguz from his position as Mayor of Stolac dated 4 March 1998, which in fact was just a half-page letter to Mr Raguz (OHR 1998b). The letter contained no detailed explanation of why Mr Raguz was being removed and gave him no opportunity to make representations about whether his removal was justified or proportionate. Mr Raguz had been democratically elected. The trigger event for his removal was the murder of an elderly Serb refugee couple who had returned to Stolac. There was no public evidence of Mr Raguz’s complicity in the murder; he was condemned for failing to make Stolac sufficiently safe. His removal was merely a political scalp. This course became quite commonplace. The same provisions of the Bonn declaration were also construed as a right to make miscellaneous orders directing public officials to do all manner of things, where no legal ground for what they were being ordered to do otherwise existed. The first of these was the Decision dated 1 March 1998 establishing an interim arrangement to run the Mostar airport (OHR 1998c); soon thereafter came the Decision dated 27 March 1998 imposing the design of bank notes (OHR 1998d). This all seems rather extraordinary. Consider the following questions about the text of Annex 10 upon which the Bonn PIC was relying. First, what does it mean to ‘facilitate resolution of difficulties’? On the natural reading of these words, the thought being captured is surely the idea of mediation between the parties. It is a long stretch of the meaning of ‘facilitate’ to see it as including dictatorship and coercion. Second, what does ‘final authority in theater’ mean? It has no precedent in international law. ‘Theatre of operations’ is a military term, meaning the area in which troops are deployed or might be deployed during the course of military operations. The best sense that can be made of this confused term in the legal context might be that ‘where this Agreement is ambiguous, an interpretation about the ambiguous clause given by the High Representative is final’. But even that interpretation is rather unattractive: first because it would enable the High Representative to determine the scope of his own authority, an anathema to the notion of separation of powers (one of the most fundamental principles of democracy and the rule of law); second because the clause itself is highly ambiguous, and it is unattractive to interpret an ambiguous clause as being a means of resolving other ambiguities; third because the High Representative has never actually purported to give a binding interpretation in those terms. (Indeed the PIC, at the Bonn Conference, seems to have bestowed upon itself the authority to

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interpret Annex 10; why was that necessary if the High Representative could have done it himself?) Next, what is ‘this Agreement on civilian implementation of the peace settlement’? ‘Agreement’ is not defined anywhere in the DPA. Is it a reference to the entire DPA or just to Annex 10? OHR frequently maintained that it is a reference to the entire DPA, with the implication that the High Representative is ‘final authority in theater’ over all the annexes to the DPA. The purpose of their taking this position was to make the Bonn powers as broad as possible, to give the High Representative sweeping legal authority over every aspect of the DPA even including interpretation of the state Constitution. After the Bonn conference of the PIC, OHR progressively came to see itself as having the last word on every Dayton issue and indeed every legal issue in the entire country, unilaterally instructing public institutions how to apply the Dayton Constitution, state legislation and other annexes to the DPA. But there are at least three powerful arguments that this approach was premised upon a simple legal error, because the phrase ‘this Agreement on civilian implementation…’ refers only to Annex 10. First, Annex 10 is entitled ‘Agreement on Civilian Implementation of the Peace Settlement’, so a reference in Annex 10 to ‘this Agreement on civilian implementation of the peace settlement’ is surely just a reference to Annex 10 itself, because it mirrors the title of the Annex. Second, some other annexes do not concern ‘civilian implement-tation of the peace settlement’ – the DPA draws a distinction between ‘civilian’ and ‘military’ implementation, and Annexes 1A and 1B to the DPA concern military, rather than civilian matters. Third, other Annexes have their own mechanisms for interpretation or dispute resolution. For instance, Annex 4 – the Constitution of Bosnia and Herzegovina – contains provision for a Constitutional Court to interpret the Constitution; Annex 7 – on the return of refugees – establishes a Commission for Displaced Persons and Refugees before which an aggrieved person may bring a claim. The PIC’s ‘interpretation’ of the High Representative’s powers at the Bonn Conference, and the High Representative’s subsequent use of his new powers, starts to look legally preposterous, the sort of nonsense and confusion one would not expect from a first year law student. By quoting the language contained in Articles II.1(d) and V of Annex 10 to the DPA, the PIC seems to be asserting that those articles permit the High Representative to do the things listed. In other words, the PIC is interpreting those provisions. But the interpretation they give is quite absurd in light of the obscure but narrow language being interpreted and the extraordinary interpretation given, to include legislative dictatorship and summary dismissal of democratically elected officials. The thought that the presidents of Croatia, Yugoslavia and the Republic of Bosnia and Herzegovina, in agreeing to Annex 10 to the DPA, intended to give such broad and sweeping dictatorial powers over the entire territory of Bosnia and

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Herzegovina to an unelected international official over whose appointment and decisions they had no say, is quite far-fetched. Moreover, the PIC does not have legal authority to interpret anything nor, indeed, to do anything whatsoever of legal consequence. It is just a meeting of people who are interested in what the High Representative (and Supervisor) are doing, the establishing act for which is a meeting of itself. As already seen, this was not the first time the PIC had sought to act as a legally binding authority; in the ‘Chairman’s Conclusions’ of the ‘Brčko implementation conference’ (OHR 1997a), the PIC had sought to provide an interpretation limiting the scope of the First Award, without explanation of the legal justification for doing so. But that interpretation was without grounds and had been ignored, and a wholly erroneous precedent cannot serve as the basis for transforming Bosnia into a colony run by a proconsul. One might try to save the legal credibility of the PIC’s decision by arguing that it is just acknowledging the High Representative’s own decision to interpret his own powers in this outrageous way; but this is undermined by the High Representative’s contemporary statements on the issue, in which he made it clear that his authority to use the Bonn powers was ‘given’ to him by the PIC. For example, the Decision of the High Representative to remove Drago Tokmakcija from his position as Deputy Mayor of Drvar dated 16 April 1998 is just a letter, saying ‘I have no choice than to use the authority given to me by the Bonn Peace Implementation Council and to dismiss you from your position as Deputy Mayor with immediate effect’ (OHR 1998e). Likewise, the Decision removing Dragan Čavić from his position as a member of the newly elected RS National Assembly dated 8 October 1998 is also a letter, saying ‘I therefore notify you formally, by means of this letter, under the authority vested in me at the Bonn Peace Implementation Council, of your removal as a member of the newly elected RS National Assembly. You are barred indefinitely from holding further official positions in BiH’ (OHR 1998f). But this does illustrate that there was a degree of mutual abdication of responsibility for creating the Bonn powers. The PIC implied that they were created by the High Representative’s power to interpret the scope of his own authority, whereas the High Representative maintained that they were powers granted to him by the PIC. It is hard to escape the conclusion that the extent of the legal fiction involved in creating the Bonn powers was breathtaking. The PIC took it upon itself to amend Annex 10 to the DPA without the consent of the parties to it, safe in the knowledge that this course could not be questioned when the High Representative’s authority was reinforced by the presence of so many international troops in the country. The Bonn powers turned the whole of Bosnia and Herzegovina into an international protectorate, as the result of a meeting of low-level government civil servants without ministerial representation. And the protectorate would exist indefinitely.

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Annex 10 to the DPA contains no indication of the time scale within which the Office of the High Representative will remain, nor does it set out a mechanism for determining that time scale. Responsibility for determining the closure date has recently been assumed by the PIC: see for example its communiqué dated 23 June 2006, directing OHR to ‘immediately being preparations to close on 30 June 2007’ (OHR 2006a), although it had changed its mind by the time of its communiqué of 27 February 2007, stating ‘OHR will remain in place and continue to carry out its mandate…the [new] aim is OHR closure by 30 June 2008’ (OHR 2007a). By February 2008 the PIC had abandoned the notion of a time scale to closure, declaring that OHR would now stay open indefinitely (OHR 2008a). Again it is quite unclear from where the PIC derives the legal authority to make decisions on OHR’s closure. Not only had the High Representative become an unrestrained international executive authority, the PIC had decided to make itself an unrestrained overseer too. The proper venue for any such arrangement to be sanctioned would have been the UN Security Council, not the PIC. The High Representative’s assumption of the Bonn powers was subsequently recognised by the Security Council, but it never sanctioned it. Paragraph 1.4 of the preamble to UN Security Council Resolution 1173 of 15 June 1998: …reaffirms that the High Representative is the final authority in theatre regarding the interpretation of Annex 10 on civilian implementation of the Peace Agreement and that in case of dispute he may give his interpretation and make recommendations, and make binding decisions as he judges necessary on issues as elaborated by the Peace Implementation Council in Bonn on 9 and 10 December 1997. [Emphasis in the original] But an act by the PIC without legal basis cannot be given subsequent legal legitimacy merely because the Security Council acknowledges what it has done. There was no debate within the Security Council of the political consequences of granting the Bonn powers to the High Representative. There was no credible justification in international law for the way that Bosnia and Herzegovina was, almost overnight, transformed into a colony jointly administered by the international powers. Alas, colonialism has usually been the creation of gunboats rather than legal rules. Passing reference should be made here to the gross lack of due process in the exercise of powers by an international official such as the High Representative or the Brčko Supervisor, although the topic will be returned to in subsequent chapters. The right to amend legislation, and to dismiss public officials, could be exercised without any prior reference to any affected party. The relevant parliaments did not have to be consulted. Where officials were removed, they did not have to be given any notice or

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an opportunity to respond to the evidence against them. The evidence did not need to be made available to them, or even exist. There was no possibility of appeal or review of a decision, even if one lost one’s job or otherwise suffered direct and individual harm as a result of the decision. Moreover, the powers of the High Representative were used extensively, often without transparency and on occasion were thoroughly abused. Between 1998 and 2005, successive High Representatives issued 757 decisions, removing 119 people from public office and imposing 286 laws or amendments to laws.26 Decisions imposed legislation in every conceivable area, appointed domestic and international officials, established international commissions, blocked bank accounts of people thought to be assisting the flight of war criminals, amended and annulled decisions of executive bodies and ordered changes of policy in executive institutions, subjected political parties to fines, instructed public officials how to apply legislation and more. On one hot summer’s day, 30 June 2004, High Representative Ashdown removed 58 people from office, all Serbs. On the last two working days he was in office, 22 and 23 May 2002, High Representative Petritsch issued 44 decisions, removing 12 people, imposing 24 laws and amending the constitutions of both Entities, in a tradition of what became known as ‘airport decisions’ (being presumed to be signed at the airport, as the High Representative leaves). One has to wonder whether, in these and countless other cases where dismissals occurred en masse, adequate consideration was given to the individual circumstances of each individual dismissed. The reasons given in the text of decisions were usually quite inadequate. Generally there was reference to a policy failure by a domestic institution, together with a broad assertion that the person removed had to be held responsible for that failure, but without citing specific behaviour by the individual that constituted clear wrongdoing. The paucity of reasoning contained in decisions of removal was hardly surprising: OHR had no investigators who could conduct any kind of detailed investigation into an official’s wrongdoing. Its approach was inevitably broad brush and frequently quite unfair to the individuals involved. Sometimes the ‘real’ reason for a dismissal, discussed in the hallways of OHR but never made clear to the victim of the removal, was a piece of supposed military intelligence that condemned the person. But the quality of international military intelligence in post-war Bosnia was poor. Bored peacekeeping soldiers, without significant intelligence training, were instructed to collect intelligence in coffee bars; the reports they prepared were placed on files without a serious filtering process and were subsequently cited as gospel. Legally, powers of this kind are quite inconsistent with the spirit of international legal norms requiring fair trials, including a clear legal standard of conduct against which a transgression will be measured, presentation of evidence, an opportunity to respond and a decision by an impartial tribunal

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separate from the prosecuting authority. Article 6(1) of the European Convention on Human Rights provides that: In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The Fifth Amendment to the US Constitution contains words to the same effect, providing: ‘No person shall…be deprived of life, liberty, or property, without due process of law.’ Due process of law requires an impartial hearing, with presentation of evidence and an opportunity to respond: precisely what decisions of the High Representative or the Supervisor lacked. The international community exhorted the Bosnians to uphold the highest human rights standards and even explicitly wrote the European Convention on Human Rights into the Constitution of the country, providing that it would ‘have priority over all other law’.27 But it did not see fit to observe the same standards itself. It is notable that while the High Representatives were extremely energetic in the use of their powers of imposition, the Brčko Supervisors were remarkably austere in their exercise of the same powers. Between 1998 and 2005, only 66 Supervisory Orders were issued, only eight people were dismissed from public office and only one law was imposed. In each case the reason for the dismissal was an identifiable action rather than a general ascription of political responsibility and in no case was a dismissal based on alleged military intelligence. The most likely principal explanation for the relative lack of formal activity by the Brčko Supervisor compared to his counterpart in Sarajevo was that until Brčko District elections in October 2004, every senior official of the District was appointed by the Supervisor, including every judge, the mayor and all heads of government departments and every member of the District Assembly. In those circumstances, the lobbying power of the Supervisor was formidable and there was no need to impose laws: domestic institutions would gladly do whatever the Supervisor wanted them to do. But with a concentration of resources in a relatively small area, the Brčko Supervisor and his staff were also able to focus greater efforts on lobbying and consultation to achieve the results they sought. After the 2004 elections created political meltdown, and once the last Supervisor Raffi Gregorian began to disengage from the District from September 2006, the level of impositions dramatically increased; this will be explored further in Chapters Seven and Eight. The lack of legal accountability of the powers of Bosnia’s international civil servants would not catch up with the international community until considerably later. The first warning signs came in an influential article by a German think-tank in July 2003, criticising Ashdown’s use of the ‘Bonn

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powers’ as egregious (Knaus and Martin 2003). The central theme of the paper was that in principle these powers were anachronistic in modern Europe; and in practice, they were used in a way that is completely unfair to the individuals affected and in contravention of the most fundamental standards of human rights. The international mission to BiH has arrived at this paradoxical conclusion: What Bosnia and Herzegovina needs is not democratic domestic politics, but government by international experts. In Bosnia and Herzegovina, outsiders do more than participate in shaping the political agenda…in BiH, outsiders actually set that agenda, impose it, and punish with sanctions those who refuse to implement it. At the center of this system is the OHR, which can interpret its own mandate and so has essentially unlimited legal powers. It can dismiss presidents, prime ministers, judges, and mayors without having to submit its decisions for review by any independent appeals body. It can veto candidates for ministerial positions without needing publicly to present any evidence for its stance. It can impose legislation and create new institutions without having to estimate the cost to Bosnian taxpayers. In fact, the OHR is not accountable to any elected institution at all. It answers to a biennial gathering of foreign ministers, the Peace Implementation Council…whose report it normally drafts…such political arrangements bear an uncanny resemblance to…an imperial power over its colonial possessions…Vast ambitions, the fervent belief in progress, the assumption that outsiders can best interpret the true interest of a subject people – all these are hallmarks that the international administration in Bosnia shares with the British East India Company… The conditions that obtained in 1995 and the conditions that obtain today are separated by a gulf too wide to be bridged by the assertion that both represent a state of emergency that only a decisive and unquestioned authority can handle. When the High Representative today speaks of an ‘emergency’, he refers not to hatefilled radio broadcasts inciting violence against peacekeeping troops but rather to inefficient tax collection, the excessive regulation of private business, corruption in the public utilities, or technical drawbacks that make the court system less efficient than it might otherwise be…While the Bonn powers were conceived as emergency powers to confront concrete threats to the implementation of the peace accords, they have today become the regular instruments of an open-ended attempt to develop institutions by decree. The OHR has been allowed to evolve into a latter-day version of the Utilitarians’

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The Venice Commission (the European Commission for Democracy through the Law), a think-tank funded by the Council of Europe, also came to study and condemn the use by the High Representative of his ‘Bonn powers’. In its ‘Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative’ (Venice Commission 2005), the Commission opined that: …the main concern is that the High Representative does not act as an independent court and that there is no possibility of appeal. The High Representative is not an independent judge and he has no democratic legitimacy deriving from the people of BiH. He pursues a political agenda, agreed by the international community…As a matter of principle, it seems unacceptable that decisions directly affecting the rights of individuals taken by a political body are not subject to a fair hearing or at least the minimum of due process and scrutiny by an independent court. The Commission recommended that the prior consent of an international panel of legal experts, responsible for reviewing the evidence, be required before any international community dismissal of a domestic official occurs. Subsequently, in Case AP-953/05, ‘Milorad Bilbija and Dragan Kalinić’, decided on 8 July 2006 but mysteriously not published until early March 2007 (CCBH 2007),28 the Constitutional Court of Bosnia and Herzegovina held that a refusal by the domestic Bosnian courts to review removals of public officials by the High Representative breaches Article 13 of the European Convention on Human Rights, which provides for the right to an effective domestic remedy where a Convention right is violated. In so doing, the Court implied that removals by the High Representative themselves violate other Convention rights, presumably Article 6(1). The PDHR, Raffi Gregorian, was so incensed that he pushed the then High Representative Schwarz-Schilling into signing a High Representative’s decision annulling the effect of the Bilbija decision on 23 March 2007 (OHR 2007l) notwithstanding Schilling’s manifest reluctance, expressed to several OHR officials, including this author.29 There is a political background to the case; the relationship between High Representative Ashdown and the three international judges on the Constitutional Court had been notoriously fractious, with Ashdown demanding that those judges support the dismissal of the then President of the Constitutional Court, Mato Tadić,

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after his indictment for corruption. Shortly after they refused, Ashdown issued a High Representative’s Decision unilaterally reducing their salaries, without prior consultation (OHR 2005f). (This was particularly insulting because it provided that all Constitutional Court judges’ salaries would be the same; unlike the previous regime, there was to be no differential between national and international judges’ salaries. Given the radically different costs of living in Bosnia and Herzegovina and the countries from which the international judges hail, and the vastly higher market rate for the services of international judges, this was plainly absurd.) A cynical observer might speculate that the Bilbija decision was issued as ‘revenge’, it being manifest from the text of the decision that its author was one of the international judges on the Court. (For more on the Tadić affair, see Chapter Seven.) It should finally be noted that the ways in which the Supervisor and the High Representative came to use their powers have set a strong precedent for future civilian intervention by an international official with guardianship over a peace settlement. For example, the United Nations Mission in Kosovo (UNMIK), the ‘interim’ international administration that has governed Kosovo since June 1999, was headed by an official called the ‘Special Representative of the Secretary General’ (SRSG). The SRSG exercised broad powers to unilaterally issue ‘regulations’ and ‘directions’, regulations being legislative in nature while directions are essentially executive orders. The SRSG has not dismissed officials. Strangely, the UN Security Council Resolution creating the position of SRSG (UN 1999) does not expressly imbue the office-holder with any legal powers nor place any constraints on the way any powers he does have should be exercised; the practice of issuing regulations and directions appears to be entirely homegrown, presumably based upon the OHR precedent. The ‘international civilian representative’ (ICR) created to oversee post-independence Kosovo will, it is assumed, at some point replace the SRSG. However, the ICR’s powers will be rather more explicitly defined. In an echo of the language of Annex 10 to the DPA, the ICR ‘will be the final authority in Kosovo regarding interpretation of the civilian aspects of the Settlement’ with: specific powers to allow him/her to take the actions necessary to oversee and ensure successful implementation of the Settlement. The ICR may, for example, correct or annul decisions by Kosovo public authorities that he/she determines to be inconsistent with the letter or spirit of the Settlement... and ‘[i]n cases of serious or repeated failures to comply with the letter or spirit of this settlement…sanction or remove from office any public official’ (UN 2007). In practice it seems that the ICR will have powers very similar to the Supervisor and the High Representative, although whether he

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or she will exercise them in the same highly interventionist way remains to be seen. Brief reference should also be made to the Administrator of the Coalition Provisional Authority in Iraq (the CPA). The CPA existed as an interim US government administration in Iraq immediately after the US invasion of the country in April 2003, until it was disbanded in June 2004 when governing authority was handed to domestic Iraqi institutions. L. Paul Bremer, the Administrator for all but the first three weeks of the CPA’s mandate, signed decrees into force in much the same way as the High Representative. His decrees also purported to have a legal basis and were set out as though they were legal documents, although the legal precedents cited as authority for his orders were rather unusual: UN Security Council Resolution 1483, that while recognising the de facto existence of the CPA did not give it any powers (UN 2003);30 and ‘the provisions of General Franks’ Freedom Message to the Iraqi People of April 16, 2003’ (CPA 2003a), a bizarre form of legal authority to say the least. The Tribunal’s ‘Supplemental Award’ In December 1997, the Federation had made a request for the tribunal to reconvene pursuant to the terms of the First Award. The tribunal held eight days of hearings in Vienna in February 1998, and reviewed evidence of compliance with the DPA by the Entities since the First Award. It found effective resistance of Farrand’s programmes by the RS authorities in Brčko, including intimidation of returnees, illegal checkpoints, unjustified arrests and interference with voting registration, all to maintain ethnic purity of the area.31 The tribunal concluded that on the basis of this record, ‘the circumstances suggested the need for an outright transfer of Brčko to the Federation’.32 However, in its ‘Supplemental Award’, dated 15 March 1998, the tribunal decided to stay its hand in making a determination of the final status of the Brčko area until ‘early 1999’.33 Owen’s principal reason for entertaining this further delay was that RS politics were apparently undergoing a sea-change, as the hard-line SDS (Serb Democratic Party, that had led the RS during the war) had been ousted from power in favour of a more moderate Bosnian Serb political leadership, which had recently made some conciliatory statements about the future of Brčko and efforts to achieve DPA compliance in the area.34 Should that continue, the tribunal opined, ‘the equities of the situation will be much more evenly balanced than they are today’.35 The tribunal was clearly also motivated by a general sense of political instability in the entire country: ‘the joint institutions of Bosnia and Herzegovina have not yet become fully effective and…various Entity institutions are still struggling with organisational problems’, and ‘the tensions and instability in the [Brčko] region remain high…’.36 When everything else was so unstable, a

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final determination of Brčko’s status at this stage would not help matters. The tribunal put the RS on notice, however, that: Given the RS’s systematic non-compliance with (indeed, defiance of) the Dayton Accords in the Brčko area for much if not all of 1997, the Tribunal’s final IEBL decision in late 1998 or early 1999 will surely diminish the RS’s position in the Brčko area unless the RS by that time has carried the burden of demonstrating very clearly that it has truly reversed course and committed itself to an apparently permanent program of full Dayton compliance and revitalization of the area…the RS will need…to show significant new achievements in terms of returns of former Brčko residents, unfettered freedom of movement, strong support for the multi-ethnic governmental institutions including the multi-ethnic police force, and cooperation with the Supervisor…37 The tribunal therefore ordered supervision to continue pending a further application by either Entity for issue of an award, and gave a window at the end of 1998 within which an application must be received.38 It also clarified and increased the powers of the Supervisor, providing that he would: enjoy in the Brčko area powers equivalent to those conferred upon the High Representative by the Bonn Conference of December 1997, including the power to remove from office any public official considered by the Supervisor to be inadequately cooperative with his efforts to achieve compliance with the Dayton Accords, to strengthen democratic institutions in the area, and to revitalize the local economy’.39 And the award authorised the Supervisor to ‘take measures towards economic revitalization’, including privatisation, establishing Brčko area as a duty-free or special economic zone, re-opening the port and ‘reintegrat[ing] the economy…with the economies of the surrounding regions’.40 Again this wide-ranging and controversial order was signed only by the Presiding Arbitrator, who concluded after discussions between the three arbitrators that ‘a 2–1 majority decision now is impossible’.41 Although the tribunal asserted that it was increasing the powers of the Supervisor to be the same (within the Brčko area) as those of the High Representative, in fact Owen had increased the Supervisor’s powers so that they were considerably broader, at least on paper. The Supervisor now had explicit power to pursue purely economic goals, which the Bonn conference’s grant of powers to the High Representative did not include. The grounds on which the Supervisor could remove officials were also so broadly stated as to permit dismissal of anyone for virtually anything. Over

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time, the High Representative started using his powers increasingly broadly to correspond to the powers granted to the Supervisor. But it is noteworthy that while the High Representative found it necessary to assert his new powers, by dismissing several people and imposing multiple laws in the early months after the ‘Bonn powers’ were granted to him by the PIC,42 the Supervisor was relatively restrained in 1998, dismissing only one person43 and issuing only seven orders in total, mostly consolidating or building upon previous ones. (The Supervisor has consistently issued fewer Supervisory Orders than the High Representative has issued decisions within any equivalent period, save prior to the Bonn Conference in December 1997, before which the High Representative exercised no powers.) There are two reasons for this contrast. First, the threat by the tribunal of an adverse final ruling against any party failing to cooperate with the Supervisor may have abrogated to a degree the need for formal action by him, and his reputation for imposition had already been established in 1997. Second, the High Representative had yet to establish a reputation for imposition. It is also worth noting that the Supplemental Award set a precedent even starker than the First Award, for the proposition that an arbitral tribunal governed by the principles of international public law is not bound by any time scale the arbitration agreement sets for final resolution of the dispute. The one-year deadline stated in the arbitration agreement had expired on 14 December 1996, the first anniversary of entry into force of the DPA. Even had the First Award been ‘final’, it would have been two months late; perhaps that could have been explained as a legitimate delay resulting from the diplomatic tug-of-war involved in getting all three arbitrators to sit together. The fact that the First Award was not ‘final’ might (just) be justified by lack of evidence: the tribunal needed the evidence of the Supervisor, as a DPA compliance-monitor in the region, to acquire sufficient knowledge of the parties’ behaviour. But an extra year’s delay, mandated by the Supplemental Award, seems quite inexplicable by any legal theory. The tribunal had clear evidence of Dayton ‘defiance’ by the RS, which on its own legal test mandated transfer of Brčko to the Federation. It had set its own timescale in the First Award for collection of evidence. But now it chose to overturn its own timescale and wait still longer before applying its own legal test. Legal scholars sniffed at what they saw as Owen’s manifest disregard for the ordinary principles of international arbitration (Baros 1998; Copeland 1999). Yet with the benefit of hindsight, it is hard to criticise. Owen knew there was a real risk of armed conflict breaking out again, depending on the terms of the award the tribunal made. In the face of such potentially devastating consequences, legal rules had to give way to political expediency. It was simply too early to issue a final ruling. Indefinite international supervision would probably form a component of any final

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resolution of the dispute. Time was needed for citizens and politicians to become accustomed to this and to the en masse ethnic reintegration that had already begun and would have to continue. Therefore Owen deferred the decision, but once again hinted at the ‘neutral District’ approach44 upon which he would eventually settle and in all likelihood had already decided. This set a striking precedent for public international law arbitration. Legally imposed resolutions of territorial disputes cannot work if the legal decisionmakers are too tightly constrained within procedural rules. Therefore by agreeing to international arbitration over disputed territories, contracting parties are accepting what is in reality only a quasi-legal process, with a necessarily vast degree of discretion. They are agreeing that judicial temperament will be brought to a problem, but where a problem is fundamentally not legal in nature, strict rules of legal procedure will not be applicable. Legal rules will be used only in the most flexible way and only to the extent that they reflect good policy. Or in the words of the Presiding Arbitrator: One of the unique qualities of the present arbitration is that it inherently encompasses political considerations, requiring as it does that the Tribunal allocate political responsibilities between the Entities…[the Tribunal] should not [therefore] act until matters have become sufficiently stabilized to allow it to put in place a solution that is likely to endure over the long term.45

5 THE ‘FINAL AWARD’

The tribunal bit the bullet and made a final decision on Brčko’s status on 5 March 1999, after a further request by the Federation to continue proceedings and a further round of hearings held 8 to 17 February 1999 in Vienna.1 The decision it made, in the so-called ‘Final Award’, was to create a special ‘District’, outside the political control of either of the Entities and subject to indefinite international oversight by the Supervisor. To describe this as highly controversial would be an understatement. The Federation was in denial. The Bosniacs had previously thought of themselves as the darlings of the international community and had been convinced Owen would grant Brčko to them outright.2 The RS predictably rejected the solution in an angry resolution of its national assembly.3 RS Prime Minister Dodik resigned as a symbolic protest, but his resignation made little practical difference. He remained ‘acting prime minister’ of a caretaker government and was persuaded by High Representative Westendorp to resume office on the promise (subsequently dishonoured) that amendments to the Final Award would appease RS interests. The Final Award contained an annex that would set out details of the District’s new institutional structure, including provisions on the Police, Judiciary, public property, elections, education and the legal system. The Final Award promised that the annex would be subject to amendment after receiving representations from the parties. Of course there was no way Westendorp could promise that the annex would contain any particular provisions; its final content was in the hands of Owen. OHR Sarajevo was also deeply unhappy. Supervisor Farrand had previously enjoyed strong support from the first High Representative, Carl Bildt (December 1995 to June 1997). But his relationship with Bildt’s successor, Carlos Westendorp (June 1997 to July 1999), was notoriously rocky, and under him OHR and the PIC refused to endorse the Final Award. The First Award and the Supplemental Award had both been endorsed by the PIC at its meeting on 7 March 1997 and in a statement dated 15 March 1998 respectively (OHR 1997a; OHR 1998i). But this was not the prevailing international community response to the Final Award,

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103 103 which was never put before the PIC for endorsement. (In practice the High Representative controlled the agenda for the PIC.) Westendorp telephoned Owen shortly before it was issued, trying to persuade him to desist from issuing the award at all. The telephone call lasted four hours. Westendorp sought to convince Owen that the Final Award would precipitate Bosnia’s political collapse, and subsequently accused Farrand of disloyalty for supporting it. But Owen was manifestly unmoved. He signed and published it, and it was a bombshell. Interestingly, OHR seemed to have a partial change of heart after Westendorp’s departure from the position of High Representative. Westendorp’s successor, Wolfgang Petritsch (August 1999 to May 2002), apparently took the view that if the Final Award was a fait accompli, he might as well adopt it himself and pretend it was his own work. Accordingly the existence of the District and the Final Award were acknowledged in a decision of the High Representative dated 8 March 2000 that purported to establish the District by action of the High Representative (OHR 2000a). This is legally nonsensical: the Final Award4 provided that the District was to be established by a decision of the Supervisor, not of the High Representative. Perhaps the best explanation of that High Representative’s Decision is as an attempt to set a legal precedent that the decisions of the High Representative somehow overrode the decisions of the Supervisor, or that the decisions of the Supervisor derived their authority only from that of the High Representative. That position would be quite unsustainable: amongst other things, if the Supervisor’s authority were derivative from that of the High Representative, then how could it be that the Supervisor was issuing orders before the PIC granted the High Representative any significant legal powers? In light of its patent illegality, the fact that the High Representative signed such a decision at all is indicative of the curious way diplomats and international organisations think about the law. Rarely if ever held accountable before a court or tribunal for their actions, they make legal principles up as they go along, relying on whatever half-baked legal arguments appear to support their political machinations. The Final Award was issued on the same day as Nikola Poplasen, President of the RS, was removed from office by the High Representative (of which see more below). This was a potentially momentous time for Bosnia and Herzegovina: shortly afterwards, on the night of 24/25 March 1999, NATO bombing of Serbia began, triggering demonstrations throughout the RS.5 The only party to support the Final Award was the US Department of State, which gave its unequivocal backing to Owen and Farrand. The personal confrontations within the international community created by the Final Award, and Farrand and his successors’ determination to implement it in the face of OHR hostility, permanently soured the politics of international community participation in Bosnia and Herzegovina and subsequently revealed divisions of which domestic actors could

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take advantage. When assessing the wisdom of the Final Award with the benefit of hindsight, historians will need to evaluate the natural merit of the model of government the award created against the chronic political ruptures that it created, which were in turn exacerbated by its subsequent single-minded implementation by a succession of Supervisors. The Final Award is a very unusual legal document. It seems to have been the exclusive creation of Owen’s deliberations. The way in which it is structured is quite odd for an arbitration award. It makes little sense to one without knowledge of the history of the dispute and the tribunal’s prior awards. Compared to other awards in territorial arbitrations, it is remarkably short. The Rann of Kutch and Taba arbitration awards both run to hundreds of pages, with reams of detail setting out in great depth the background to the dispute, the positions of the parties, the factual conclusions drawn and the legal reasoning involved. By contrast, the Final Award has a mere 18 operative pages, plus an annex of six pages setting out some details of the District’s institutional structure.6 The brevity of the Final Award may well be a consequence of the modest resources available to Owen. His participation in the Brčko Tribunal, an enormously time consuming exercise, was provided without charge. Be that as it may, for all its concision the Final Award was undoubtedly revolutionary. Its fundamental components can be distilled relatively shortly. (1) The tribunal recalls the test set for the RS in the Supplemental Award, ‘of demonstrating very clearly that it has truly reversed and committed itself to apparently permanent program of full Dayton compliance’7 [sic], and concluded that the RS had failed to make the necessary showing. It ruled that: notwithstanding the good intentions of RS Prime Minister Milorad Dodik, the Serb political leaders exercising immediate local control in Brčko…aligned with the anti-Dayton SDS and SRS parties…tolerated and apparently encouraged…obstruction against …the Tribunal’s objectives, particularly… (a) encouraging…displaced persons…to return to their pre-war homes, (b) helping to develop democratic multi-ethnic institutions, and (c) cooperating with the international supervisory regime…it is very unlikely that the level of local obstructionism will effectively diminish so long as…the SDS and SRS parties led by newly elected RS President Nikola Poplasen [ ] are allowed to remain dominant in…the Brčko area.8 The SDS (Serb Democratic Party) was the hard-line wartime Bosnian Serb political party of which Radovan Karadžić was the leader. The SRS (Serb Radical Party) was even more extreme. Poplasen had been elected RS President in elections on 12 and 13 September 1998, defeating moderate incumbent Biljana Plavšić. (Plavšić was moderate only in relative terms. She

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105 105 had been a member of the Bosnian Serb Presidency during the war, together with Karadžić and was dubbed the ‘Serbian Iron Lady’. She is currently serving a 13-year sentence for war crimes, having been indicted by and pleaded guilty before the ICTY.) Poplasen was a member of the SRS. He was notorious for incessant extreme nationalist rhetoric for the brief period he remained in office. He was removed from his position by the High Representative by a decision dated the same day as the Final Award, 5 March 1999, for obstructing formation of a moderate RS government.9 Owen elaborated on the RS’s failures to comply with the standard set in the Supplemental Award in paragraphs 18 to 33 of the Final Award, citing Poplasen’s rhetoric against the tribunal (including threats of a military response to an adverse ruling), SDS statements (successfully) discouraging Serb refugees from leaving Brčko to return to their pre-war homes, unchecked violence and intimidation discouraging Bosniac and Croat returns to Brčko and Serb authorities’ disobedience of Supervisor Farrand’s orders concerning multi-ethnic participation in Brčko government institutions. (2) The Supervisor would create a new ‘District’ with the borders of the pre-war Brčko opština, whose institutions would have complete legal independence from those of the Entities. Upon the effective date to be established by the Supervisor each entity shall be deemed to have delegated all of its powers of governance within the pre-war Brčko opština to a new institution, a new multi-ethnic democratic government to be known as ‘The Brčko District of Bosnia and Herzegovina’ under the exclusive sovereignty of Bosnia and Herzegovina. The legal effect will be permanently to suspend all of the legal authority of both entities within the Opština and to recreate it as a single administrative unit.10 The basic concept is to create a single, unitary multi-ethnic democratic government to exercise, throughout the pre-war Brčko opština, those powers previously exercised by the two entities and the three municipal governments.11 The District would be what has come to be known in international law as a corpus separatum,12 a unit of territory legally and administratively completely separate from its two larger Entity neighbours. In practice such complete legal independence from the Entities proved to be mildly over-optimistic; it turned out to be impossible to sever all connections, as there were some public institutions on District territory (most notably railways and pension funds) that the District proved too small to be able to manage itself. But the basic idea was clear and it was implemented: the District would become a third mini-Entity, with its own institutions mirroring – but quite separate from – those in the Federation and the RS. The description of the District

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as a ‘third Entity’ would subsequently become highly contentious, because the Entities would become extremely hostile to the District, and describing it as a third Entity would give them too easy a legal argument against its existence. The Constitution of Bosnia and Herzegovina provided that there would be only two Entities; thus in the Final Award Owen himself was at pains to emphasise, rather unconvincingly, that the District he was creating would not be a third Entity.13 (3) The Supervisor would prepare a new ‘Statute’ for the District government, a sort of mini-constitution, and would develop a detailed schedule for formation of the government within a few months from the end of 1999.14 The government would consist of a democratic Assembly, appointed in elections to be scheduled by the Supervisor; an ‘Executive Board’, selected by the Assembly; an independent judiciary, and a unified police force independent from the police forces of the Entities.15 (4) The presence of Entity police forces in the District was forbidden. Transit of RS armed forces though the District could occur with SFOR permission, but Entity armed forces were otherwise banned from the District.16 The RS military barracks in town would therefore be disbanded (they were subsequently renovated and transformed into a new courthouse). (5) Entity laws would initially continue to apply in the District, RS laws to the north of the IEBL and Federation laws to the south. However, the Supervisor and the District Assembly would be responsible for enacting new District legislation to harmonise those laws, so that a single set of laws would eventually apply throughout the District. The Supervisor would appoint a Brčko Law Review Commission (the ‘BLRC’) to prepare such legislation, chaired by an ‘international jurist’. Once this process was complete, the Supervisor would ‘conclude[] that the IEBL has ceased to have any legal significance in the District’.17 The process of legal harmonisation, after an initially promising start, became a long, drawn-out affair after closure of the BLRC (see Chapter Six). The ‘conclusion’, that the ‘IEBL has ceased to be of any legal significance in the District’ was not reached until August 2006, when a Supervisory Order abolished remaining Entity legislation in Brčko District (OHR 2006a), thus formally completing the legal harmonisation process. (6) Following the Supplemental Award, the Supervisor’s powers were already extraordinarily broad. But he would be given multiple additional specific powers, stated in the Final Award and its annex. These included the responsibility to appoint a ‘joint implementation commission’ to prepare a new District Statute, following which the Supervisor would enact it into law;18 powers to direct the Entities to take actions assisting establishment of the District;19 scheduling establishment of the District government,20 elections21 and determining voting rules;22 dissolution and reconstitution of the legislative assemblies existing in the District;23 approvals of all appointments and dismissals of judges and prosecutors;24 imposition of

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107 107 legislation;25 operation of the customs post at the international border with Croatia in Brčko town;26 establishing a District tax system and ensuring its enforcement;27 adoption of and amendment to the District budget;28 micromanaging reintegration of the District’s education system,29 and personally approving all disposals of public property.30 In short, the Supervisor would have the broadest unilateral executive authority of any international official ever to preside over a territory. A comparison of the Supervisor’s powers with those of other similar officials in the history of internationalised territories will be made in Chapter Nine; for now it is sufficient to note that the Supervisor’s powers were breathtakingly wide in scope. In practice he would be the final authority in the District on virtually everything. His powers were so broad that he would develop into an autocrat whose orders would become beyond question. (7) The tribunal would retain ongoing jurisdiction: …this Tribunal will retain jurisdiction over this dispute until such time as the Supervisor, with the approval of the High Representative, has notified the Tribunal (a) that the two entities have fully complied with their obligations to facilitate establishment of the new institutions herein described, and (b) that such institutions are functioning effectively and apparently permanently, within the Brčko opština. Until such notification, the Tribunal will retain authority to modify this Final Award as necessary in the event of serious noncompliance by one or the other of the entities.31 Nobody paused to analyse this provision and at the time of writing, nine years later, the certification has still not been made. But in truth it was highly ambiguous and gave the Supervisor enormous discretion. It was not clear what the scope was of the Entities’ obligations to ‘facilitate establishment of the new institutions’, and in practice the Entities did virtually nothing to help in the establishment of the District. Absolutely everything was done by the office of the Supervisor, in coordination with a few other international agencies and a large swatch of development aid, mostly from the United States. The Entities contributed no money to establish the District, no people and no logistics or resources. RS troops had for the most part already left the District by the time of the Final Award; the RS police units were disbanded and recreated as District police by the Supervisor. The Entities were completely insulated from the District and did nothing whatsoever to assist in its creation.32 From January 2004, when Supervisor Susan Johnson began her mandate with pressure from the US State Department to terminate Supervision (of which more in Chapter Seven), the first limb of the test was neglected and, instead, discussion of the test within the Supervisor’s office focused upon the meaning of the idea that District institutions were functioning

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‘effectively and apparently permanently’. Do institutions function ‘effectively’ if corruption, incompetence, ethnic partition and nationalist rivalry are pervasive throughout every level of government? Do institutions function ‘permanently’ if there is a widespread fear by all domestic political actors that they will collapse as soon as supervision ceases? The fact that these questions came to be asked is prescient of the problems that subsequently faced the District in the late days of supervision, and they will be explored in more detail in subsequent chapters. But for now we need pause only to observe that the apparently legalistic test Owen set for terminating the jurisdiction of the tribunal turned out really to be a primarily political one; and, because of that, it was subject to political pressures by the international community in Bosnia and Herzegovina. While the US administration still supported the District project there would be no question that the test was satisfied. Once the State Department tired of the District, great pressure would be placed upon the Supervisor to conclude that the test was satisfied, notwithstanding his or her independent political judgment on the issues involved. Because it was for the Supervisor to decide whether the test was met, it was for the Supervisor to decide the length of his or her own mandate. Without the Supervisor’s certification to the tribunal, the Americans were stuck in the Brčko project indefinitely. Therefore once the Americans had decided they wanted to pull out, they had to pick their Supervisors carefully: they needed a docile Supervisor who would be prepared to issue the certification that enabled them to depart. The first Supervisor they picked for that task, Susan Johnson, turned out not to be as docile as they had hoped, and spent two and a half troubled years explaining to an unreceptive US State Department what severe problems the District institutions had, much to their chagrin. So she was replaced with another more pliant individual. This will be the story told in Chapters Seven and Eight. (8) Supervision would ‘continue…indefinitely’ until terminated by the PIC.33 No guidance was given in the Final Award about when or in what circumstances the PIC might terminate Supervision. But since a certification by the Supervisor would be necessary to terminate the Tribunal’s jurisdiction, the Supervisor could forestall any PIC decision on termination by declining to certify. Therefore it was up to the Supervisor when to terminate his own mandate. Owen’s regime in effect gave the power of its termination to the Supervisor. Owen cited no precedent for the radical political reorganisation he was ordering. But in fact there were multiple historical precedents. While the Final Award itself was a unique use of arbitration proceedings to imbue a disputed territory with a special legal status subject to international oversight, the notion of an ‘internationalised territory’ was not in itself novel. There had been a great many prior examples of attempts to

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109 109 internationalise territory, but none had been successful since the end of the World War II. The concept of an international territory had developed gradually throughout the nineteenth and early twentieth centuries, in response to the challenge of what to do about multi-ethnic regions in Europe in which two competing sovereign states had legitimate interests. The solution that evolved was to establish the territory as a corpus seperatum, with a political and legal structure detached from either of the competing states, but subject to international oversight of one kind or another. It is worth pausing briefly here briefly to survey the most prominent of these models, to appreciate the parallels between the Final Award and its historical antecedents.34

10. The boundaries of Brčko District created by the Final Award, shown against the boundaries of the Entities and neighbouring Croatia. The District chops the Republika Srpska (and, to a far less significant degree, the Federation) in two.

The first such territory was the Free City of Cracow (1815–1846), established by the 1815 Congress of Vienna which redrew the political map of Europe after the defeat of Napoleon Bonaparte. The city of Cracow, in what is now southern Poland, was established by treaty as an independent state to defuse the competing claims over the territory made by Russia, Austria and Prussia. It had its own constitution which formally vested all executive, legislative and judicial powers in domestic institutions, but the operation of these institutions were overseen by a ‘Board of Representatives of the Three Protecting Powers’, that from 1831 onwards began regularly interfering in the affairs of the domestic institutions and uni-

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laterally amended the constitution several times.35 Cracow suffered the reverse fate of Brčko. As we shall see in subsequent chapters, Brčko was doomed by a gradual loss of interest on the part of the international community, whereas it was Cracow’s curse to become the victim of evergreater international attention. After the November Uprising in 1831, an armed rebellion against Russian rule in Poland, Cracow’s status as the sole autonomous Polish territory came under greater scrutiny and the international powers became determined to interfere to increasing degrees, to prevent a repeat of the 1831 nationalist insurrection. By contrast, Brčko was simply forgotten, as international attention was diverted from Bosnia in the early years of the twenty-first century. As with Cracow and Brčko, under the 1896 constitution for an independent and internationalised Crete, imposed by the European powers, there would be domestic governing institutions but supervised by a consortium of foreign government representatives. The island of Crete was run by an ‘international government’ between 1897 and 1909, pursuant to the Congress of Berlin of 1878 that carved up the Ottoman Empire. The Berlin treaty provided for the (Muslim) Ottoman Empire to retain formal sovereignty over the predominantly Christian island, but allowed for international intervention in its affairs. In practice a ‘Board of Ambassadors’ exercised supervision over domestic civilian institutions, including appointment of the governor (the supreme executive authority, with the right of legislative veto) and responsibilities over the police and judiciary. Subsequently a ‘Council of Four Admirals’ was established to coordinate the foreign military forces occupying the island, that exercised powers of arrest and detention over civilians for contraventions of a military penal code. Likewise, the ‘international settlements’ in Shanghai between 1845 and 1944 were internationalised territories of a kind, in that by treaties between China and various foreign powers, territorial concessions were granted to foreign states in which nationals of those states would enjoy certain privileges and be subject to distinct legal rules (the ‘Land Regulations’). These were promulgated and enforced by international legislative, executive and judicial authorities that existed in parallel with domestic Chinese authorities. For the most part the international institutions had exclusive jurisdiction over the affairs of foreigners in the territories. For instance, there was an international legislative assembly, responsible for amendments to the Land Regulations, which was composed of foreign citizens owning land above a certain value. Foreigners would be subject to the Land Regulations only; ordinary domestic law, applicable to Chinese citizens living in the same territory, would not apply to them. Moving forward to internationalised territories established in the twentieth century, two examples are outstanding. The International Zone of Tangiers, from 1923 to 1957, was the culmination of a series of treaties, dating back as far as 1767, giving foreigners and foreign institutions

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111 111 progressively greater authority within the city. Although Tangiers remained formally under the sovereignty of the Moroccan sultan, the level of international intervention was such that in 1923 the three dominant foreign powers, Great Britain, France and Spain, felt able to adopt a Statute of Tangiers by an international treaty to which Morocco was not a party, with its own legislative, executive and judicial functions independent of the Sultanate. While the Sultan’s emissary retained authority over the domestic population, the international institutions, whose members were in practice appointed by and shared between the foreign powers’ consuls, retained exclusive jurisdiction over the city’s foreign residents. The ‘governor’ was an international official (in practice always French) with broad executive authorities, and the institutions’ work was overseen by a ‘Control Commission’, consisting of the foreign consuls with broad powers including the right to veto legislation and dismiss the governor. The most recent instance of an internationalised territory was Danzig. The ‘Free City of Danzig’ was a predominantly German city surrounded by Polish territory, of strategic importance like Brčko because of its port. It was internationalised by the Peace Treaty of Versailles concluding World War I in 1918 and subsequent treaties set out its Statute and its relations with Poland. Its Statute provided for domestic institutions independent from those of Germany or Poland, overseen by an international ‘High Commissioner’ whose role was principally mediatory but who also had formal power to resolve disputes. The Free City lasted until Nazi occupation in 1939; more will be said about the High Commissioner, and a comparison drawn with the Brčko Supervisor, in Chapter Nine. Finally, some words must be said about two projects for internationalising territories after World War II that were conceived but not realised. The ‘Free City of Trieste’ was an internationalised territory on paper only, whose Statute was enacted but never implemented. At the end of the World War II, British troops occupied one part of the Trieste region, including the city itself, which had a predominantly Italian and a minority Slavic population, and Tito’s Yugoslav forces occupied outlying parts of the same area. Again because of the strategic importance of its port, a dispute emerged over into which sovereign territory – Italy or Yugoslavia – it would fall. Trieste was subsequently declared to be an independent sovereign state separate from both countries in the 1947 Allied peace treaty with Italy. The UN Security Council adopted a ‘permanent Statute’ for the Free City, which provided for independent domestic institutions headed by an international ‘governor’ appointed by the UN Security Council. The governor was to have had very broad powers, including veto of legislation, participation in the work of the Government, appointment of the judiciary, initiation and imposition of legislation, assuming emergency control of the police, pardons and reprieve, foreign policy, suspension and adoption of emergency administrative measures, signature of international treaties on

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the Free City’s behalf and appointment of the directors of the police and the port. The breadth of the Trieste governor’s powers was the only historical parallel to an international official with the wide range of powers of the Brčko Supervisor. Nonetheless, the victorious powers represented on the UN Security Council were unable to agree upon the identity of a governor and nobody was ever appointed to the position. The Statute of the Free City was still-born and in practice the city itself was run on an ad hoc basis by a British general until a 1954 agreement to partition the territory between Italy and Yugoslavia. The other failed free city project at the end of World War II was Jerusalem. When the UN General Assembly passed a resolution to partition Palestine in 1947, the resolution included a proposal to make Jerusalem an international city-state whose sovereignty would be distinct from the newly formed Israeli and Palestinian nations. Under the draft Statute prepared by the United Nations, there would be a democratically elected ‘legislative council’ (subject to quotas for Arabs and Jews), but the executive authority would be vested in international officials. There would be a ‘council of administration’ to act as the government, but its members would be appointed by the ‘governor’, an international official who would report to the UN Trusteeship Council, with wide powers. He would be able to initiate legislation, impose legislation in an emergency, convene extraordinary sessions of the legislative council and appoint judges, and would have had exclusive jurisdiction to rule on disputes involving holy sites. He would also be personally in charge of the police force and would have had the exclusive right to conduct foreign affairs on behalf of the city-state. None of these government structures came into existence, however. The first Arab–Israeli war of 1948–1949 resulted in partition of the city and the draft Statute was never adopted. Owen must have had these models in mind when devising the District and the role of the Supervisor, although he makes no explicit reference to them in any of the tribunal’s awards. They all had several things in common: first, an international administration; second, a constitutional regime imposed from outside without the consent of the people to whom it would apply; third, a corpus separatum with a minimum of legal ties to the adjacent political entities between whom the territory was in dispute. The notion of internationalisation for Brčko was not novel per se, but it was surprising that Owen rejuvenated an idea that had last been successfully applied before the World War II and had twice failed since then. Owen was taking a significant risk in resurrecting a historically defunct notion, the most recent examples of which had been conspicuous failures. Moreover, the legal method by which the decision to internationalise territory was taken was unprecedented. In all previous cases internationalisation had been created by international treaty supported by resolutions of the League of Nations or the United Nations; in this case it was imposed by a quasi-

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113 113 judicial process of international territorial arbitration. Finally, the breadth of powers enjoyed by the international official at the helm of the District, being virtually unlimited and unchecked, was substantially broader than anything that had been previously conceived. Prior officials with authority over internationalised territories had clear, if broad, legal mandates; the Supervisor’s legal mandate would be virtually unlimited. He would have absolute power. One important difference between the District and other internationalised territories, which may help explain the broader powers of the Supervisor as compared with other similar international officials, is that the District was intended to outlast the Supervisor. The Final Award anticipated the departure of the Supervisor; supervision would be terminated by the PIC,36 presumably once there was confidence that the District’s institutions could function without international oversight. One might therefore argue that the Supervisor would necessarily be imbued with broad powers, as his is not primarily a role of ongoing monitoring and observation, but rather of institution-building from scratch. The legal structure initially created for the District, created by the first Supervisor and his staff, reflected this anticipation: domestic legal instruments would never refer to the Final Award and orders of the Supervisor, the presumption seemingly being that the international legal aspects of the District could simply be ‘lifted off’ the domestic legal regime at some subsequent stage once the decision to terminate supervision had been made.37 (Interestingly, the same was true of the High Representative: the most powerful executive authority in all Bosnia was recognised nowhere in any domestic legal instrument, notwithstanding that his powers and decisions were allencompassing and permeated into virtually every corner of Bosnian legal and political life.) But the anticipation underlying this theory – that the District could outlast the Supervisor – was perhaps one of the weaker points of the Final Award. In all the preceding instances of internationalised territory, the presence of international officials had been assumed to be permanent and would last as long as the territory itself. It was never supposed, for example, that the High Commissioner of Danzig would depart once Poland and Germany had become used to the idea of an independent city-state. Anticipating the departure of the Supervisor might therefore be seen as naive. As shall be seen, the Supervisor rapidly became an integral part of the legal and political system of the District, just as Danzig’s High Commissioner had. Under the Final Award, he became a fourth branch of government, whose influence and decisions pervaded every District public institution. The idea that the District would be able to survive without the Supervisor was perhaps as realistic as the thought that an ordinary democracy based upon the separation of three branches of government would be able to survive without one of those three branches – for example independent courts. Therefore if the Final Award should

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have assumed that the Supervisor would be present indefinitely, then it should have taken more care to delimit the Supervisor’s powers. They would not merely be emergency powers, to be exercised for a few years until the Supervisor departed; they would be part of the permanent structure of the District, still being used nine years after the Final Award, and therefore they needed a clearer framework than they were in fact given. The ‘Final’ Award? In no sense was the ‘Final Award’ final. It was not the last time the tribunal would convene, and it was not the last award the tribunal would issue (see Chapter Eight). Equally, it was never realistically a final resolution of the political status of the Brčko opština, for two reasons. First, because no internationalised territory has ever survived indefinitely; all have ended in dissolution or failure. Sooner or later, a new war, or a shift of balance in political power between the competing sovereigns that seek control of the disputed territory, leads to its being absorbed into one or the other of its protagonists. Second, because the Dayton Constitution is not itself a realistic long-term political structure for the entire country; it is a model for the country to subsequently break into pieces, with Brčko in the middle, once foreign troops and international oversight depart. The Final Award was therefore final only in the sense of being an interim resolution of a dispute that would always be impossible to resolve consensually given the Dayton Constitution. Local people and officials came to accept the existence of the District relatively quickly. But the Entities never came to accept it and the old territorial dispute smoulders to the present day. In the face of external domestic pressures seeking to reopen the territorial dispute which the Final Award placed in temporary abeyance, it seems unlikely that the District can survive without international custody. The reason for the District’s demise will therefore ultimately be the same reason that all internationalised territories have fallen. Internationalisation of territory assumes a balance of power and foreign interest in the region that sooner or later changes; the subsequent imbalance may precipitate the collapse of the unique institutions created. There was also a fundamental legal objection to the Final Award, which has cursed the District ever since High Representative Paddy Ashdown (May 2002 to January 2006) embarked upon an ambitious programme of state-building at the expense of the Entities. As an uneasy compromise between Bosniac insistence that Bosnia and Herzegovina remain a single sovereign territorial unit and the Serb insistence that Republika Srpska have all the attributes of statehood, the Dayton Constitution granted to the Entities the vast majority of powers usually thought of as the prerogative of central governments in sovereign states. Ashdown flatly favoured the Bosniac vision of the country, seeing a stronger central government as

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115 115 essential to Bosnia’s normalisation and integration into European institutions. He would therefore attempt to create de facto changes to the constitutional structure of the country, to build state institutions not expressly anticipated at Dayton. This story will be outlined in Chapters Seven and Eight, but it suffices for now to note that his reforms would create gargantuan problems for the District, and the District would generate gargantuan problems for his programme, due to a fundamental legal problem infecting the concept of the District that we should now note in passing. The existence of the District seems at first sight inconsistent, or at least out of kilter, with the Constitution of Bosnia and Herzegovina. Article 1(3) of the Constitution provides: 3. Composition Bosnia and Herzegovina shall consist of the two Entities, the Federation or Bosnia and Herzegovina and the Republika Srpska (hereinafter ‘the Entities’). There is no mention of the District as a component of the country. Article III is entitled ‘Responsibilities of and Relations Between the Institutions of Bosnia and Herzegovina and the Entities’. Article III(1) lists eight relatively narrow powers of state institutions (‘foreign policy’, ‘foreign trade policy’, ‘customs policy’ etc.). Article III(3)(a) provides that ‘All government functions and powers not expressly assigned in this Constitution to the institutions of Bosnia and Herzegovina shall be those of the Entities’ and Article III(2) gives to the Entities other rights, including the right to sign treaties and international organisations under various conditions. Article IV gives the Entities direct representation in both Houses of the State Parliament. Article V(4) provides for division of state ministerial positions between the Entities in a given ratio. Article VI(1)(a) provides for the Entities to select judges of the state Constitutional Court. Article VII(2) provides for a division of positions on the Central Bank’s governing board between the Entities. All this is missing for the District. The District is referred to nowhere in the country’s constitutional structure, because the Final Award post-dates the Constitution (which is an annex to the DPA) by some three and a half years. The Final Award effectively creates a constitutional hole in the map of Bosnia and Herzegovina, defining a territory about which the Constitution says nothing. In practice this does not matter as long as the District behaves (as it did in the early days) as an autonomous city-state, politically and legally independent from the rest of the country. But as soon as one attempts to create connections between the different political units of Bosnia and Herzegovina, as Ashdown did in his drive to centralise government in Bosnia, this legal vacuum becomes an acute problem.

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Perhaps faintly foreseeing this problem, Owen made a number of cryptic remarks explaining how the Final Award could be rendered consistent with the Constitution, and explaining the relationship between the District and the state authorities. He said: As an institution existing under the sovereignty of Bosnia and Herzegovina, the new District government will be subject to the powers of the common institutions of BiH as those powers are enumerated in the BiH Constitution. All other powers of governance within the Brčko Opština, having been delegated by the two entities, will be exercised exclusively by the District government…the entire territory…will…be held in ‘condominium’ by both entities simultaneously: The territory of the RS will encompass the entire Opština, and so will the territory of the Federation. Neither entity, however, will exercise any authority within the boundaries of the District.38 The Tribunal is satisfied that all aspects of the plan are defensible as being consistent with and not disruptive of the Constitution of BiH as adopted at Dayton. The District plan is consistent with the constitutional requirement that Bosnia and Herzegovina consist of two, and no more than two, Entities…Since all territory within BiH will continue to be assigned to one entity or the other or both, it will continue to be the case that BiH consists only of the two entities…Article III(5)(a) explicitly authorizes BiH to ‘assume responsibility for’ such matters as ‘are necessary to preserve the sovereignty, territorial integrity, political independence and international personality of Bosnia and Herzegovina.’ This provision is also explicit that ‘[a]dditional institutions may be established as necessary to carry out such responsibilities.’ As has been clear since Dayton, the instant dispute that the potential to ignite efforts to destroy Bosnia through secession or renewed hostilities. In these circumstances, the invocation of Article III(5)(a) is both appropriate and necessary, and the creation of the new District as herein described is constitutionally authorized.39 As will be seen in later chapters, the meaning of these paragraphs subsequently became the source of intense debate. But they were in reality a legal fiction, penned to create the appearance of consistency between the Final Award and the Constitution. Owen was creating a third mini-Entity, but to say so explicitly would have rendered the Final Award liable to the charge that it was unconstitutional, and would have mandated widespread changes to the Constitution to incorporate that third Entity, which Owen presumably did not feel comfortable imposing in an arbitration award. To obviate these problems, Owen described the District using the language of

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117 117 a ‘condominium’: the territory of the District would be shared by and be part of both Entities. But his notion of a ‘condominium’ was novel. The concept of a ‘condominium’ had been used previously, albeit very rarely, in international relations, but in a quite different way. In prior condominiums, such as Andorra and Fiume, two political units agreed to share sovereignty over territory. In the late nineteenth century, Fiume (the Habsburg name for the Istrian city of Rijeka, now in Croatia), although institutionally part of Croatia within the Habsburg Empire, was in many respects run direct from Budapest by a Hungarian-appointed governor, and this arrangement has been described as a condominium between Croatia and Hungary. (Interestingly, in the early twentieth century Fiume was the subject of an abortive attempt at internationalisation along the lines of Danzig.)40 Likewise, modern Andorra is sometimes described as a condominium; for, although an independent state and a member of the United Nations since 1993, it has two co-heads of state, one of which is the President of France and the other of which is the Bishop of Urgell, a town in Spain. Condominiums are rare precisely because the potential for failures of cooperation between the two power-sharing authorities is so high; where they cannot agree, there will be deadlock. As will be seen, this is precisely the reason why the state of Bosnia and Herzegovina, being a condominium of the Entities, is so dysfunctional without international community support. In Owen’s condominium, by contrast, neither Entity has any sovereignty over the District, which becomes completely autonomous. Owen’s model raises a plethora of questions, apparently not anticipated because he foresaw the development of a far more functional central state than ever came to pass. If the District is a state institution, which state laws apply within it? What representation should the District have in state institutions? What happens if the Entities agree to expand the scope of state competences? These questions lay dormant for a while, as mere intellectual curiosities in the absence of functional state institutions. But, as shall be seen below, they have erupted more recently to confound the District’s progress. The international community has pushed to create state institutions that require the participation of both Entities, and all three national groups, to function. Thus they are conventional (rather than Owenite) condominiums and for this reason do not work. These dysfunctional state condominiums, and the astonishing disregard for the District’s interests that their progenitors in OHR under Ashdown exhibited, wreaked havoc for the District because it had no proper representation within them. But before we explore this key component in the District’s decline, we must assess Brčko’s halcyon days: the early development of the District as an isolated international protectorate. The District was at its best when it was in practice an international city-state, run by a succession of for the most part relatively wise international governors with generous resources. It is to that story we now turn.

6 BRČKO’S POLITICAL AND ECONOMIC DEVELOPMENT UNDER SUPERVISION Unusually for an internationalised territory, the early years of Brčko District were a tremendous success. The reason for this may have been that the Supervisor and his office were already established and recognised, the Supervisor’s authority and reputation were acknowledged and through the Supervisor’s mediation all three sides were already in dialogue and cooperating. Moreover the genuinely local actors from all three sides – the people who were from Brčko before the war – wanted to reconstruct the society in which they had previously lived. Under the stewardship of the Supervisor, the influence of outsiders – particularly the Pale SDS – significantly decreased. Therefore it was relatively straightforward to push through the reforms that the Final Award mandated, because by this time the prominent local politicians wanted them to work. Immediately after the Final Award was issued, there was an intense bout of work to merge the three municipal administrations and create ‘the District’. OHR North renamed itself the ‘Brčko Final Award Office’ (BFAO), with the mission of implementing the Final Award. A draft Statute was prepared, and enacted on 8 March 2000 by Supervisory Order, the date on which the District was declared to come into existence. The three municipal administrations existing in the Brčko area were forcibly integrated, a huge job given that they had been developing on divergent tracks for some seven years (since the outbreak of war 1992).1 These administrations had essentially been run in parallel, with the same departmental divisions and the same lines of political responsibility. The administrations’ documents and records were in each case incomplete or inconsistent and the task of reconciliation was colossal. When the Bosniacs and Croats had fled the town in 1992, those working in the government had run off with as many files as they could carry. This meant that the records of all three sides were in a mess, particularly after the chaos of war. There were three sets of laws and it was tremendously confusing to establish which had primacy. The Final Award provided that until harmonised, Federation laws would apply south of the IEBL and RS laws north, but conflict of laws problems abounded nonetheless. The Croat admin-

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istration’s laws were effectively abandoned, that administration having no de jure authority or recognition within the Federation. SFOR troops collected documents and files from government offices in Brka and Seonjaci and transported them into the former RS Brčko government building in town. That building was renovated using foreign aid money. The new District government would initially be run under the supervision of international consultants, the ‘District Management Team’ (DMT), funded under a USAID project.2 On 8 March 2000, every employee of the three former municipal administrations was deemed to be now employed by the District of Brčko. The effect of this, naturally, was that the District now had far more employees than it needed. Many were initially kept on waiting lists but still paid according to their previous contracts. There were subsequently widespread redundancies, as everyone was forced to apply for new jobs in public vacancy procedures, a unique innovation at the time in Bosnia and Herzegovina (Sommers 2002). But this regime created considerable loyalty to BFAO amongst those civil servants who were ultimately retained by the District government, as they owed their positions directly to the Supervisor and his staff. Significant budgetary and revenue reforms were also introduced that have proved an essential component of the District’s financial selfsustainability. The first budget for the District was adopted in April 2001, and was balanced – the first balanced budget in Bosnia and Herzegovina in living memory. It also promoted transparency by including operating detail – another innovation by the standards of the region. A new budget law, adopted in November 2001, provided for the budgetary independence of the judiciary, yet another novelty and essential for preserving judicial independence. A five-year capital needs budget was established as a plan– ning tool for government-driven development. A District Revenue Agency was inaugurated, an independent executive institution responsible both for revenue collection and treasury functions, and with a compliance function to ensure transparent expenditure of District funds by government departments. A single bank account was used to collect and disburse public revenues, in contrast to a series of ‘special purpose’ accounts prevalent in the communist era that facilitated the mysterious spiriting away of public funds. Finally, Entity control over public revenues collected within the District was eliminated by abolishing the Entity payment bureaux. The bureaux were a Communist era form of monopoly state-controlled banking institution, acting as a central bank but with exclusive control over tax collection and accounting services. All public and private businesses had to maintain their bank accounts with the bureaux and all money transfers had to be routed through them. They were very slow, highly corrupt, above the law and drove businesses underground to avoid having to use them. They were controlled entirely by political parties, and laundered money, expropriated revenues of public companies and exercised political control over

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the police, pension funds, health care, education and public and private businesses. Farrand realised the bureaux were one of the biggest evils in Bosnia’s post-war institutional structure and their monopoly was broken in the District by a Supervisory Order in April 2000 (OHR 2000d), promptly after the District was established. Private banks were permitted to register in Brčko and henceforth would handle all financial transactions in the usual ways prevalent in western market economies, including receipt of public revenues. The District revenue agency would manage all incomes and expenditures of public institutions and it opened accounts in the name of the District with private banks. The process of replacing the bureaux was the subject of pernicious interference by OHR Sarajevo, who under pressure from Entity politicians persuaded Farrand’s successor, Gary Matthews, to reverse in part his reforms against the payment bureaux. Farrand’s order had diverted all payments made within the District into Entity pension and health insurance funds to District bank accounts. Less than three weeks after his arrival on 2 June 2000, Matthews issued his first Supervisory Order, on 22 June 2000 (OHR 2000e), reversing Farrand’s reforms so that the Entities would retain control over the pension and health insurance contributions made by or on behalf of District residents.3 With the benefit of hindsight, this proved to be a colossal error. The Entities had established pension funds as legal successors to a state-run Bosnian pension fund during the communist era. Both funds had been virtually bankrupted during the war because few payments were being made into them, and they were plundered to finance war efforts. Their payouts to pensioners were therefore pitiful, while the size of contributions the funds demanded be paid into them by employees were (and remain) huge. They were so high (in some cases being 30 per cent or more of an employee’s salary) that they encouraged widespread fraud; even large employers would refuse to register employees, or would register than as earning far less than their real salary. Essentially, contemporary payments in were being used to finance payments out to current pensioners, whereas historical payments received should have been used for that purpose. The same problems pervaded the Entity health insurance funds and the net result of these compulsory payments made to the Entities by legitimate employers created a colossal extra income tax, thereby driving employers underground and discouraging foreign investors from labourintensive investments that would have created jobs. One of Bosnia’s greatest contemporary ironies is that notwithstanding the pitifully low median wage levels, there is still vast unemployment because foreign investors, when they can be persuaded to enter the market, do not want to make job-creating investments because of the exceedingly high government-imposed labour costs.4 The Entities’ pension funds and health insurance funds are principally to blame for that. The opportunity in the District to break these cycles and dramatically reduce labour costs, and to

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permit employers to conduct their affairs legitimately, was lost because of Matthews’s rash move under external OHR pressure early in his mandate, when he could not have acquired experience of the issues involved in the short time since he had arrived in office. Apart from revolutionising the District’s financial system, there was also a quiet revolution in the way government provided basic services, including a series of measures that were without precedent elsewhere in the country (Sommers 2002). Government tenders were issued for private companies to bid on multi-year service delivery contracts. Responsibility for issuing passports and other identity documents was removed from the police (the old Communist model) and instead given to special government units applying streamlined procedures. (Entities were responsible for issuing passports, and therefore the District inherited the same responsibility for its residents.) A new Department of Public Records established field offices in urban and rural areas to record marriages, births and deaths. An office for citizens’ complaints was established. Public hearings were introduced as a form of input for citizens into certain decisions of the District Assembly, for instance the content of urban planning documents and details of the budget. An appellate commission was established to review the legality of District government decisions, and a disciplinary procedure provided for sanctions against District officials in violation of their duties. In short, District government institutions were subject to an intensive course in the latest thinking in institution-building. Legions of development economists, frustrated with the irritant of needing the cooperation of their local counterparts elsewhere in the developing world, could have free reign in Brčko. The District became well known as a laboratory for international development experts, keen to put their theories of neo-institutional economics5 into practice in a receptive microcosmic environment. Transparency, publicity of information, separation of powers, access for citizens and legal accountability were the perennial buzzwords of the era. And all these reforms were adopted and accepted remarkably well – at the time. In the subservient political culture of the western Balkans, the internationals were now in charge in Brčko, and the local actors more or less happily implemented the instructions they were given without complaint. The new institutions functioned, but the underlying mindset of the local administrators implementing them of course had not changed. The locals could be obedient and unquestioning when faced with instructions from international community officials, who in the minds of the domestic actors were a new generation of elite communist party apparatchiks. But once the international community downsized and withdrew its presence, these institutions would inevitably start to crumble. Laws and papers alone do not change a political culture, and the old practices would soon resurface. Be that as it may, progress in the early days was staggeringly quick. New District court buildings were constructed under a USAID project, at the

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time the best in the country and still far superior to many European and American courthouses. Senior public officials were appointed by the Supervisor, including a mayor, vice-mayor and heads of government departments (OHR 2000b); an Assembly of 29 councillors with members from the full spectrum of local political parties (OHR 2000c) and all judges and prosecutors (OHR 2001a). An informal ‘ethnic key’ was introduced, under which jobs at all levels would be distributed in the ratio 2:2:1 (Bosniac : Serb : Croat). It is worth noting in passing that the system produced gross over-representation for Croats, who are estimated to amount to only 10 per cent of the post-war population of the District. Under the 1991 census, there were more Croats than Serbs – 24 per cent compared to 21 per cent. However, few Croats who were expelled from or fled their homes in the Brčko area returned. This was merely illustrative of a country-wide trend: Bosnian Croats were all granted Croatian passports after the war and many of them exercised their consequent right to reside in Croatia, which recovered economically and politically from war much faster than did Bosnia. The disproportionate representation of Croats under the ethnic key can perhaps be explained as an attempt to conceal the widespread departure of Croats from the area. Thus the major jobs in the Executive (the first to be handed out) were distributed fairly arbitrarily, but evenly, between senior officials of the three merged administrations. The first position the Supervisor chose was the mayor, a charismatic moderate ex-communist Serb called Siniša Kisić, who during the war had been a military commander in the (comparatively untainted) Yugoslav National Army, and by many accounts a profiteer. Because he had worked on the exchange of prisoners between the two sides, rarely for a Serb the Bosniacs had a degree of trust for him. The first mayor had to be a Serb, so the international community perceived, to ease transition from the Serb dominance of Brčko town to multi-ethnicity. After that, appointment of other senior positions was fairly straightforward. Farrand appointed Mirsad Đapo the first president of the District Assembly. Đapo was a capable Bosniac politician who would subsequently become Brčko’s first elected mayor (of which see Chapter Seven). The Deputy Mayor was therefore to be a Croat, Ivan Krndelj, the former Chief of Police in Seonjaci. The heads of departments were subsequently divided up between the ethnic groups accordingly, to secure a fair balance of power. It is important to emphasise that the entire system was initially based upon dictatorship by the Super-visor. All positions of political power and authority depended upon the gift of the Supervisor and could be (and on occasion were) revoked by him.6 There was some discussion but little negotiation. Farrand picked individuals whom he thought would cooperate and make the system work. They were not necessarily popular amongst their own ethnic groups; Kisić, for instance, was a member of the minority Socialist Party of Republika Srpska (SPRS) that would subsequently fare poorly in the District’s first democ-

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ratic elections, and he would never have stood a chance of being a democratically elected mayor under the District’s electoral system as it was subsequently devised. He was chosen simply because he was a Serb, he was moderate, he was personally charming and he was someone Farrand believed he could work with. The Final Award contained an annex, setting out some principles for the structure and legal status of the District’s new institutions. The annex was redrafted over the course of the weeks and months subsequent to the Final Award, mostly upon the suggestions of Farrand and his staff at BFAO, and was reissued on 18 August 1999 (OHR 1999b). The Annex contains all manner of detailed rules on matters as varied as Entity citizenship for District residents, District prisons, an ‘advisory educational committee’, District residents’ voting rights in state and Entity elections, military service and transit of Entity armed forces through the District. BFAO treated even this annex, into which they had significant input, only rather loosely. The annex provided for executive authority to be vested in an ‘executive board’,7 but that was a poor fit with pre-war and wartime domestic political institutions, and instead BFAO created the position of mayor, and under him a series of heads of government departments. Likewise, the Annex provided that there was to be a ‘judicial department’ within the District government,8 but no such department was ever created. A ‘District attorney’ was to be established within the ‘judicial department’, a reference to the Yugoslav-era legal institution of a ‘public attorney’, an independent legal official charged with protecting the District’s assets. But no such official position was established until the Supervisor imposed a law on the public attorney’s office in September 2006 (OHR 2006a), and then the public attorney was classified as a separate quasi-judicial institution not part of any government department. A District prison facility was anticipated under the Annex,9 but in fact none was ever built and District law now allows a convict sentenced to imprisonment by District courts to choose the Entity in whose prisons he or she will be incarcerated. While these small things did not really matter in the grand scheme of building the District, they do highlight the legal unaccountability of the Supervisor and his office. If an affected domestic party believed the Supervisor was acting in excess of his legal powers, for instance by ignoring a provision of the Annex, he had no remedy. At least the High Representative is in some sense politically accountable to the international community through the PIC, although that accountability mechanism is highly imperfect. (Meetings of the PIC are held in private and its agenda and decisions are drafted in advance by the High Representative himself after secret lobbying; it is hardly an independent and transparent monitoring institution, still less one to which domestic politicians and citizens have universal access.) But the Supervisor is legally accountable to nobody, and in practice politically accountable only to the US State Department.

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(The PIC rarely takes an interest in what the Supervisor is doing, it being unusual for the Supervisor even to have an opportunity to address PIC meetings; where those addresses are permitted, they rarely last more than five minutes.) The powers given to the Supervisor under the tribunal’s awards have been left for the Supervisor to interpret him or herself. Where the Supervisor has seen fit to depart from the details of the Final Award, there is nothing that anybody has been able to do about it. The Brčko Law Revision Commission (BLRC) got up and running in June 1999, under the management of the formidable Michael Karnavas, an Alaskan lawyer who completely rewrote the entire legal and judicial system in Brčko (ICG 2002a). Everything was restarted from scratch, from training of judges to court management to preparation of essential new laws, as Karnavas himself has comprehensively documented (Karnavas 2001; Karnavas 2003). To prevent delays, ubiquitous in the Bosnian legal system, he introduced tight time scales in judicial procedures.10 He suspended all judges and prosecutors and re-advertised their jobs, personally interviewing and selecting all candidates and subjecting them to probationary periods in which he would assess their work. He secured budgetary independence for the District judiciary, providing that the District would prepare its own budget and propose it directly to the Assembly. He established a District Judicial Commission with responsibility for preparing the budget and legislation relating to the judiciary, and for appointing and disciplining judges. The judiciary would therefore gain a degree of insulation from the broader political melée in the District Assembly.11 In an extraordinary legal transplant feat, Karnavas rewrote all the procedural codes governing the operation of the District courts. Drawing on his own background, he decided to introduce significant portions of the criminal procedure code of Alaska to Brčko District. He took the Alaskan code as a model, made amendments to fit District institutions, translated it into Serbo-Croat and introduced it as a District law. The system of criminal procedure he introduced is adversarial, in marked contrast to the inquisitorial system prevailing throughout the former Yugoslavia. An inquisitorial system of litigation is one in which the judge takes an active role in determining the course of the proceedings and the evidence and legal submissions he or she wishes to hear. In the adversarial system, by contrast, the prosecution and defence lawyers decide what evidence and submissions to make to the judge or jury, who play more passive roles, merely deciding upon the contrary evidence or submissions they hear. The two systems are philosophically quite different and require different skills and training for lawyers and judges. In adver-sarial proceedings, far more depends upon the quality and training of the lawyers, who consequently attract a higher premium for their work. Lawyers who transfer from the inquisitorial to the adversarial systems often struggle to get used to the proactive nature of their roles, not being used to taking every evidential objection or dissecting

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evidence, a task more usually left to the judge in an inquisitorial system. In a country like Bosnia, where public sector wages are significantly higher than those in the private sector, transition to an adversarial system can also create an inequality of arms in criminal litigation: prosecutors will generally be of significantly higher quality than defence lawyers, because they are public officials and are better paid and better resourced. That disparity is more likely to have a significant effect on the quality of trials in a system where the judge has a more passive role, because he or she is less likely to intervene to correct the imbalance. However, although theoretically controversial, imposition by Karnavas of a system of criminal litigation with so radically different a philosophy from that which had gone before, remarkably went without significant adverse comment. The reason is probably that notwithstanding the theoretical questionability of what Karnavas did, his execution was without doubt exceedingly good. The new system he imposed was willingly accepted (the judiciary and lawyers wanted jobs that were essentially within his exclusive gift) and vastly improved standards compared to the rest of the country. The Brčko District ‘model’ of criminal litigation was subsequently rolled out in the rest of the country on account of its success in Brčko. The courts in Brčko District became well known as the most efficient and of the highest quality in the country, the most likely to dispense justice in an ethnically impartial and politically independent manner. The relatively sound legal system in the District provided an extra degree of assurance to the private investors that the District became so desperate to attract. In 2003 the District became the first place in post-war Bosnia in which highprofile politicians were prosecuted, including the first District mayor Siniša Kisić, who was promptly dismissed from office by BFAO as a result (OHR 2003a). By contrast, judicial reform in the rest of Bosnia and Herze-govina has been significantly slower and the countrywide standard of rule of law is extremely poor. It has often been commented that systematic human rights abuses are common throughout Bosnia’s legal system, as legal rules are deliberately misapplied to bend the outcome of court proceedings to the result deemed politically preferable (ICG 2000; ICG 1999d; Berling 2001).12 Judicial and administrative authorities wantonly victimise and abuse citizens, and the likelihood of abuse dramatically increases if the citizen is from the ‘wrong’ ethnic group or is not a member of the ruling nationalist parties’ political structures. Until the establishment of the High Judicial and Prosecutorial Council in 2002, a state body responsible for appointment of all judges countrywide, judges were appointed by political parties on the basis of perceived loyalties, and the majority of tenured judges remain appointed under that system even now. Judges are corrupt due to poor pay and lack of accountability (ICG 1999b). Government administrative procedures are arbitrary and ethnically biased, due to the existence of a complicated government structure, multiple overlapping mandates, scarcity of

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resources, inconsistent rules and political influence. Decisions are often made on the basis of whom the applicant knows rather than the merits of their case. Likewise, interminable delays and failure to implement or enforce decisions are perennial problems of both judicial and administrative procedures (ICG 1999d). While there were extensive attempts by the international community to reform the judiciary in the rest of Bosnia (of which see Chapter Seven), they focused on building up a state-level court system instead of reforming the Entity systems, and made the error, common in state-building enterprises, of focusing on criminal justice and in particular war crimes (Sannerholm 2007). Thus civil litigation and administrative law, essential to creating a hospitable climate for foreign investment and promoting high standards of public administration, were quite neglected. The challenge to promoting rule of law in Bosnia derives principally from the fact that in the pre-war communist period, there was scant tradition of legal impartiality in Yugoslavia. Every important decision was made within the communist party bureaucracy; the judiciary, themselves being communist party appointees, had no interest in challenging those decisions. Thus legislation was deliberately drafted ambiguously for maximum flexibility, so it could subsequently be interpreted consistently with the prevailing political will. In the politically radicalised culture of post-war Bosnia, there was no incentive for the courts or legislatures to move beyond this tradition. Legislative flexibility and procedural ambiguities within the court system were thus captured within the folds of ongoing political controversies, and the legal system was also co-opted to pursue corrupt purposes. If the law could reasonably be interpreted to mean anything, judges could accept money or other favours to interpret the law as they pleased. Moreover the communist system had ingrained within Bosnia a culture of political irresponsibility, where there is no accountability for wrongdoing at any level of government. Under totalitarian rule, public officials below the absolute leader are not encouraged to think of the public good. Always potentially the victims of the exercise of arbitrary power by those above them, they become experts only at pleasing their superiors. There being little space for advancement through merit, they confine pursuit of their self-interest to creaming off money and benefits whenever a tacit opportunity presents itself. Such were the origins of the culture of public corruption in post-war Bosnia and the judiciary was awash with this attitude. In light of the baseline condition of Bosnia’s legal system from which he had to begin, the Karnavas’s efforts were outstanding and could probably never be replicated in the absence of such a tenacious and hard working individual. However, Karnavas’s confrontational personality earned him many enemies within the international community and he was soon fired. He was by all accounts extremely difficult to work with, because he would brook no dissent and regarded anything not directly related to his work as a

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waste of time. Copious anecdotal evidence abounds about Karnavas. He worked colossally long hours and expected the same from his local staff, with a resulting extremely high turnover rate amongst them. In one infamous incident he met counterparts in the OHR Sarajevo legal department and explained that the most dangerous place in Bosnia was outside the gates of OHR Sarajevo at 5pm, as one would be liable to be crushed by a stampede of idle staff all rushing to leave the office on time. He also had a notoriously fractious relationship with the then head of the BFAO legal department and the two were incapable of civility to one another. Ultimately Supervisor Henry Clarke (2001–2003) fired Karnavas under pressure from OHR Sarajevo, who loathed him for both his arrogance and his success. The BLRC was closed in October 2001, solely for the purpose of removing Karnavas. Although the US government funded the BLRC, OHR administered the funding – and cut it off. The work of the BLRC was assumed by the BFAO legal department and all its staff (apart from Karnavas) were absorbed by OHR North. For all Karnavas’s irascibility, his loss was undoubtedly to the detriment of the District’s legal system and the rule of law in Bosnia in general. His example was illustrative of how single-minded and capable international officials, pursuing institutional reform without the fetters of international community politics, could achieve far more with concentrated work in a small area than could the multiplicity of international organisations with overlapping mandates in Sarajevo, no matter how enormous their collective resources. But some questions remain about the legitimacy of Karnavas’ approach. After he had left Brčko, there was nobody else with his energy and determination to follow up upon faithful implementation of the system, with the result that the legal system suffered from significant backsliding. While the quality of justice in the District remains relatively high, the system of criminal and civil litigation now existing in Brčko is best described as a ‘hybrid’ between adversarial and inquisitorial systems, in which inquisitorial practices have crept back into judicial convention, notwithstanding the adversarial rules theoretically written into legislation. After Farrand Bill Farrand left in May 2000 and the US State Department seems to have had some trouble in replacing him. The second Supervisor was Ambassador Gary Matthews, who stayed for only nine months from June 2000 to March 2001, before taking a position as the Deputy Head of Mission for the United Nations Mission in Kosovo (UNMIK). It was widely known that his would be only a brief or stop-gap mandate, implying that the State Department could not at the time it appointed Matthews find a suitable candidate prepared to stay as Supervisor for a longer period. Matthews regularly travelled to Kosovo while he was Supervisor, suggesting his

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attentions were elsewhere. His only notable achievements were reversing Farrand’s reforms to the operation of Entity pension and health insurance funds in the District, discussed above, and presiding over riots over education reforms, due to a failure to consult adequately before announcing a new policy (of which more below). He also appointed a magistrate in a court that was subsequently promptly abolished (OHR 2000f), and established an interim licensing regime for Arizona market that was also abolished soon thereafter (OHR 2000g), but these were his only significant achievements. He subsequently went on to achieve greater things in Kosovo. After Matthews’s departure, there was an interregnum of six weeks during which the long-standing German Deputy Head of BFAO, Gerhard Sontheim, acted in lieu. Sontheim, a former German military officer, joined the Supervisor’s office in August 2000 and has worked in the role without interruption until the time of writing, and successive Supervisors have admired his hard work in executing their policies. He served as acting Supervisor twice, between Matthews and Clarke, from March to April 2001; and between Clarke and Johnson, from September 2003 to January 2004. During these interim periods Sontheim issued several controversial Supervisory Orders, including the first explicit dismissal of a District Government official, in March 2001;13 the first dismissals of Assembly councillors, in April 2001 (OHR 2001f); and the Supervisory Order dismissing the Mayor Siniša Kisić and senior government official Ismet Dedeić dated 12 November 2003 following their indictments for corruption (of which more in Chapter Seven). Sontheim acquired a fearsome reputation within the District for dismissals, as a blunt tactic for dealing with its problems. The third Supervisor, Ambassador Henry L. Clarke, was appointed and served from April 2001 to September 2003. Clarke was a retired US diplomat, again suggesting that the State Department was having trouble filling the post from amongst its active service personnel. The problem the State Department faced in recruiting and retaining Supervisors was merely an acute version of the problem all long-term international missions face: it is difficult to persuade personnel with sufficient skills, experience and standing to commit themselves long-term to living in a developing country. Brčko is a small town in a remote corner of northern Bosnia and has never had much to offer the expatriate. At the height of activities between 1999 and 2002 the number of international officials present in the town was as high as 500 in total, with as many as 900 US military personnel also resident at Camp McGovern. But Brčko was no expatriate haven in the way Sarajevo was. The position of Supervisor was not one to which State Department family allowances applied, and there was no practical prospect of work for one’s family or spouse. Clarke himself accepted the position only with reluctance; he initially wished to commit himself for no longer than six months, but on the insistence of then High Representative

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Wolfgang Petritsch agreed to stay for no less than one year. In the end he stayed considerably longer, but ultimately left to reunite his family. Throughout the course of the mandates of Matthews and Clarke there was consistently high economic growth in the District, in marked contrast to the rest of the country. The presence of international supervision encouraged private investors who considered that the District offered a degree of legal certainty, investment security, relative lack of corruption and high quality of interlocutors within the international community that were lacking elsewhere. Clarke, who had significant State Department experience in transition economies, initiated a programme of privatisation of former state-owned enterprises in the Brčko area. Virtually all such companies had stopped operating during the war and had not started again since, so they were little more than asset sales of whatever had not been damaged beyond repair (or stolen) during the war. These sales followed a significantly different model from privatisations elsewhere in the country, which failed to produce economic revitalisation because they merely consolidated political control of public companies. The privatisation model adopted in both Entities was known as ‘voucher privatisation’, which followed fairly closely the failed model of privatisation adopted in Russia in the 1990s: a majority of the shares in each privatised company was issued to company employees, to use for the purchase of shares in newly privatised companies.14 In Bosnia, these citizens would then be encouraged by local political parties to invest their vouchers in ‘voucher funds’, which would manage the shares on their behalf. The voucher funds were subject to direction by political parties. The net result was that privatisations occurred only in name; politicians remained in control of the companies which were privatised.15 Privatisation was thus subverted into a tool to divide companies previously managed by the communist party between the various post-war successor political parties. In many ways post-war Bosnia has managed an extraordinary feat: to transform itself not into a multi-party democracy but into a multi-party communist state. In contrast with the failed privatisation model pursued in the Entities, under the Brčko model pursued by Clarke two-thirds of the shares in each company were sold to a single bidder in a transparent tender process closely monitored by BFAO, usually for a nugatory purchase price but with strong and legally enforceable investment commitments and subsequent contract monitoring. (The remaining one-third of the shares was issued as employee vouchers as a sop to political considerations.)16 Fifteen companies were successfully privatised using this model between June 2002 and January 2004, and companies for which buyers could not be found were restructured or liquidated. The privatisation process in Brčko District was a great success and Clarke, who must take principal credit, has himself written at greater length about the exercise (Clarke 2004). Under Clarke’s auspices, the District government also contracted out the Arizona market

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to private management. The Arizona market had developed into a huge and seedy centre for smuggling, prostitution and drugs. The latter two commodities were associated particularly with the large number of UNIPTF officers present in the region, and a few words should be said about this mission. The United Nations International Police Task Force, established pursuant to Annex 11 to the DPA,17 was a UN agency with a mandate to reform policing within Bosnia and Herzegovina after the war. It consisted of police officers from all over the world. There was a particularly heavy presence of IPTF officers in the Brčko area (as many as 300), on account of their intensive participation in ethnic reintegration of the Brčko police force. In an echo of unaccountable UN missions in conflict zones elsewhere in the world, the IPTF rapidly developed a mediocre and even seedy reputation, alienating the local populace. They did little work, even less of it effective, and earned high international salaries even though they were for the greater part from developing world countries by the standards of which their UN salaries were vast. Their relationship with their domestic counterparts was often strained. Bosnian police officers found it hard to accept instructions in modern human rights compliant policing from police officers from countries with far lower policing standards than those prevailing in Bosnia. IPTF became notorious for its support for and associations with brothels and trafficked sex slaves, and in some cases extortion rackets (Pallen 2003). Bosnia suffered from a huge problem of forced commercialised sex and trafficking in women from the end of the war until the closure of the IPTF mission at the end of 2002. IPTF also became embroiled in the scandal of ‘decertification’ of police officers (ESI 2007a). IPTF was supposed, under its mandate, to vet all officers who had served prior to or during the war, denying ‘certification’ to individuals who were unfit for duty. Denial of certification would result in the individual being banned for life from working in the police or private security services. This was the fate of several hundred officers. The haphazard and shoddy way the vetting process was undertaken created a horrifying catalogue of errors and human rights abuses. As the mission closed suddenly without completing reviews, officers were ‘decertified’ without being told of the evidence against them, or were decertified for arbitrary reasons (for instance failing to attend a training course), or were decertified without even being informed. The UN subsequently refused to acknowledge the IPTF’s failings, wishing to maintain a position of infallibility. OHR was complicit in this, by applying pressure to prevent attempts by the Bosnian government and the Bosnian judiciary to establish a review process (ESI 2007b). Supervisor Matthews had previously sought to regularise the operation of Arizona market, in a Supervisory Order dated 16 November 2000, that introduced a licensing regime and ordinary working hours (OHR 2000g). But Arizona market had, from the beginning, established a sordid

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reputation for drugs, guns and prostitution by virtue of being completely unregulated. The then High Representative Wolfgang Petritsch (August 1999–May 2002) and his staff told Clarke that they wanted the market demolished. Clarke, aware that Arizona market was the biggest single employer (as many as 2,000 people worked there) and the largest centre of economic activity in all of post-war Bosnia and Herzegovina, decided to contract out its reconstruction and operation instead. Ignoring the on-high policy prescription from central office caused further friction between OHR Sarajevo and OHR Brčko, as the new Supervisor demonstrated that, very much in the mould of his predecessor Farrand, he was prepared to exercise de facto independence from his supposed boss. Clarke granted the site and management responsibilities over the market on a 20-year concession to Italproject, an Italian–Bosnian venture capital consortium, which introduced a system of licensing for the informal stalls there, stamped out illegal activities and renovated the infrastructure in the area. Arizona market is now successful and bland, consisting of some 2,500 stalls employing approximately 5,000 people, with over $100 million in annual turnover and contributing an undoubtedly large but incalculable amount to the District’s annual tax revenues.18 Another principal Brčko innovation that must be mentioned was the successful reintegration of the education system. There was probably more local resistance to this process, begun by Matthews and concluded by Clarke, than any other policy promoted by the Supervisor’s office. In October 2000, there were riots in Brčko after a ‘two schools under one roof’ policy was announced by Matthews without prior consultation with local teachers or political or community leaders. This model was more modest than the eventual result, and involved different teachers teaching separate mono-ethnic classes the same curriculum in the same classrooms at different times of the day. It maintained segregation in all but name. It is the model used by OSCE and promoted in other ostensibly multi-ethnic communities within Bosnia and Herzegovina, such as Mostar, and is widely perceived as a significant failure by the international community in post-war Bosnia. Nonetheless, after this faltering start, Clarke began education reform anew, achieving far more than Matthews had ever hoped. In consultation with local teachers and communities, he enacted a law providing for ethnically fully reintegrated schools, in which children from all three ethnic groups are taught at the same time in the same classrooms to a neutral curriculum. Nowhere else in post-war Bosnia and Herzegovina does this occur. Efforts in education reform in the rest of the country have floundered through competing international efforts invested with haphazard levels of commitment (Perry 2003). The Brčko reforms had an important caveat: to engender domestic acquiescence, they were introduced gradually. In the first academic year following the new law, only the youngest class of children in each primary school (i.e. the class of children

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new to the school) would be integrated. In this way, school classes already constituted would not be disrupted and the onset of multi-ethnic classrooms would be gradual. But not even an Assembly all of whose members had been appointed by the Supervisor would support legislation to this effect; Clarke therefore imposed the law by Supervisory Order (OHR 2001c). Once imposed, the entire process went remarkably smoothly. The contrast between the Matthews and Clarke approaches demonstrates the importance of adequate consultation and of respecting due political processes, even with the Supervisor’s dictatorial powers of imposition. The customs terminal at the bridge in Brčko town was managed by Eammon O’Reardon, an official provided by an EU programme called ‘CAFAO’, the Customs and Fiscal Assistance Office. O’Reardon was sent by CAFAO on his own to Brčko in 1998, without a clear EU mandate or adequate resources. He was adopted by the Supervisor, and Farrand gave him a mandate to single-handedly manage Brčko’s customs, which at the time (controlled by the RS) were charging discriminatory tariffs to discourage Bosniacs and Croats from using the international border crossing bridge to enter Brčko from Croatia. After O’Reardon’s takeover, Brčko’s customs officers were well paid and became renowned as efficient and noncorrupt, in marked contrast to virtually every other border crossing in Bosnia and Herzegovina. Duties were also lower than anywhere else in the country. Accordingly Brčko became the principal crossing of choice for commercial vehicles in northern Bosnia, and the District collected customs revenues for its coffers far disproportionate to its size. As much as onethird of all the oil imported into Bosnia and Herzegovina came through Brčko, and regular tailbacks of oil trucks at the border post became a common Brčko eyesore. As a result of some political shenanigans, this led the Croatian government to prohibit all trucks over eight tonnes from using the roads that led to the border, as political leaders in other parts of Bosnia, resentful of Brčko’s success in this field, sought to undermine it. The Croatian policy (in which Croatia itself had no real interest)19 was reversed after some months, following international political pressure through the US Embassy in Zagreb. Due to the popularity of its border crossing for commercial traffic, revenues were the District’s principal source of public income in the early days. (Subsequently that was overtaken by efficient tax collection, particularly from private stalls within Arizona market.) Upon establishment of the District, a tender was issued to manage the District’s customs operations, won by the RS border service, so the staff manning the customs service essentially remained the same throughout the period of transition to the District. O’Reardon kept them under control, closely monitoring their performance and stopping a lot of the normal corruption associated with borders elsewhere in the country. This arrangement continued until statelevel customs services started operating in 2003. Standards of honesty and

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integrity subsequently plummeted dramatically and the District also lost a major source of revenue. From that point, customs and excise fees went principally to the state coffers, not the Entities’ and the District’s.20 (Customs administration had been prescribed as a state competence under the Dayton Constitution, but before 2003 had been administered by the Entities and the District because the necessary state institutions had not been established.) By the time of Clarke’s departure in September 2003 Brčko was the wealthiest place in Bosnia and Herzegovina, by a significant degree. It had the highest average wage in Bosnia and Herzegovina, of 690 Bosnian Marks, or KM (approximately 350 Euros) per month net, although this was due principally to civil servants’ salaries being much higher than elsewhere in the country. The average monthly wage in the Federation at this time was 512 KM; in the RS 385 KM; in Sarajevo Canton 650 KM.21 The Mayor of Brčko remains the highest paid civil servant in the country; in 2007 his salary was 5,427 KM (approximately 2,800 Euros) per month net, more than the members of the tripartite State Presidency or the Chairman of the state Council of Ministers. The District also had the lowest official rate of unemployment in the country at around 45 per cent (although true unemployment rates are hard to calculate because of false benefit claims). Economic growth in the District created a huge budget for District institutions: approximately 170 million KM for the calendar year 2003, roughly the same as the budget for the same period for Tuzla Canton, an area in which approximately seven times as many people live. Public sector wage inflation in Brčko District, together with a large District budget to distribute to interested political groups, had been a deliberate policy to ‘buy’ multi-ethnic cooperation. It was also intended to reduce corruption on the theory that well-paid people do not need to take bribes, although as the subsequent chapters show, this theory was not born out in practice. Although many complained about the bloated civil service in excess of 3,000 people, at around 3 per cent of the population this was somewhat lower than the Bosnian average (around 5 per cent), itself not untypical of transition economies, or even on the low side (ESI 2004b). What distinguished District institutions, and created incentives for public sector cooperation, were high salaries and a large government budget. In conclusion, Brčko was an astonishing success, testament to what skilled and committed international community officials can do in a small area, unencumbered by democratic institutions (there had been no elections since the District was established) and without external political interference. It was the envy of all Bosnia and Herzegovina, a transformation from a black hole of post-war desolation to a jewel of economic and political reconstruction reminiscent of pre-war Yugoslavia. But there was always a lingering concern about sustainability that had dogged the Supervision project since the earliest days. Farrand had tried to

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achieve development as far as possible by consensus, which was painfully slow. Bosniac politicians had mercilessly publicly attacked him in the last six months of his mandate because, for them, he was not pushing ethnic reintegration quickly enough. Notwithstanding attempts to build consensus, the Supervisor’s role was essentially dictatorial: he forged results that the local actors would never have achieved on their own. The relatively rapid development of the District was a pure neo-colonial project: unaccountable international officials imposing foreign standards of governance on local actors, cutting away the communist-era working methods in which they had previously been steeped, at a strikingly fast pace. This was described as ‘a good illustration of the authoritarian temptation’ by one NGO (ESI 2004a): ‘[in Brčko] elections have been dispensed with…Politicians have been reduced to mere administrators; they accept a policy agenda given to them by outsiders, and take no responsibility for governance outcomes’. Dictatorship by the Supervisor did not foster mechanisms of democratic political accountability, and those lessons would begin to be learned only once Brčko had experienced elections. In Bosnia and Herzegovina as a whole, all forms of power – political, commercial, the police and the judiciary – were firmly held by political parties. This was a relic of the socialist era, when the Communist party ran everything, and it is a political trait that has been very slow to change. In Bosnia this attitude has survived longer than elsewhere in formerly communist Eastern Europe, because of a perception in the minds of its citizens that communism was a good system. Elsewhere in the former Communist bloc, the collapse of communism was succeeded by economic development and political liberalisation; in Bosnia, the collapse of communism was succeeded by war and poverty, leading many to look back on the communist period as a halcyon era whose practices should be recreated. Communist government practices therefore re-emerged after the war and have been frustratingly hard to dismantle. In the District, these power structures had been abolished almost overnight and replaced with imposition by the Supervisor, an unrestrained international autocrat with the powers and authority of a local Tito. Used to the communist system, local politicians and citizens were surprisingly comfortable with such a regime. But once the Supervisor stepped back from this highly interventionist role, things would unravel. The story of the District’s degeneration in the face of the international community’s attempt to disengage is complex, and it is the subject of the next chapter.

7 THE TIDE BEGINS TO TURN AGAINST BRČKO For the first three years of the District’s existence, it benefited from an extraordinary isolation. Viewed as an eccentric creation of the Americans, the rest of the country (and the rest of the international community) lost interest and the Supervisor was free to run the District as his own protectorate. But that all changed remarkably quickly as US interest in Brčko waned, and OHR became actively hostile towards the District and the Supervisor. The relationship between OHR Sarajevo and OHR Brčko had never been easy. In part this was the product of BFAO elitism: its staff believed they were doing a far better job than other international organisations in Bosnia and Herzegovina and displayed an arrogance towards the other IC actors such as OHR Sarajevo and OSCE, seemingly not interested in their advice or opinions. BFAO undoubtedly was doing a better job, but the reasons for this are complex. It enjoyed a splendid seclusion from the diplomatic and bureaucratic perplexities that were produced by a glut of international organisations in Sarajevo with overlapping mandates. There were far too many international organisations at work in Bosnia – the ‘international salariat’, as one travel guide author called it (Clancy 2004). There was not enough work for all the members of the salariat to be occupied all the time. They would endlessly run wheels within wheels, talking with each other but not talking with domestic actors or achieving results, their egos mutually bruised by constant confrontation as they fought for a slice of the same work. As a result, any consensus within the international community would be painfully slow to achieve. By contrast, BFAO had a streamlined management structure: there was one final decision-maker, the Supervisor, who did not have to consult anyone should he choose not to. IPTF, OSCE and every other international organisation had to do what the Supervisor wanted, if they sought any influence in Brčko, and the Brčko offices of these organisations became de facto branches of BFAO. The intensity of resources initially channelled into Brčko was also a significant factor in BFAO’s disproportionate achievements. USAID ran several projects focusing exclusively on Brčko, in-

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cluding renovation of the court complex and reorganisation of the District government. It might be argued that it would be embarrassing if significant results had not been achieved in Brčko, given the finances and manpower Brčko received. But significantly, Brčko did not receive disproportionate financial aid compared to the rest of the country; the intensity of resources Brčko received was not money but skilled international personnel. Brčko is often erroneously cited as having received large amounts of international aid, when in fact foreign assistance disbursed in Brčko was much less than in other parts of BiH. Former High Representative Lord Paddy Ashdown recently estimated that BiH has received $16 billion (USD) in aid since the end of the war. From this Brčko has received an estimated $70 million ($30 million of which has come directly from the US Government.) In comparison, Mostar has received upwards of $300–$400 million ($15 million of which was for the restoration of Stari Most, the Old Bridge). Obviously it is not the amount of money, but how the money is spent that is crucial to success. (Binnendijk et al. 2006) The relative success of the Brčko project was in part the cause of the fractious relationship between the ‘two OHRs’, which rumbled on interminably. An internecine struggle emerged in the respective offices’ legal departments, in a debate about whether the Brčko legal department worked for the Sarajevo one. The problematic nature of their relations was accurately captured in the words of a report of 2003 of a prominent NGO: [The Supervisor’s progressive] agenda [for legal reform] spelled trouble with the OHR Legal Department in Sarajevo. It and other OHR departments naturally aimed to assert their authority over ‘their’ Deputy High Representative in Brčko, to maintain a consistent policy line across BiH, and to prevent the Brčko tail from wagging the OHR dog. Equally naturally, the Supervisor and his helpmates were resolved to maximise their autonomy and to do everything that was required to implement the Final Award. They did not appear to care overmuch what the fainthearted busybodies in faraway Sarajevo might think…Certainly it did not help relations between the two proconsuls when, over the next few years, the policies pursued and solutions found in Brčko proved more successful than those generated in Sarajevo…joy over the achievements of OHR-North was far from unalloyed in Sarajevo.1 Karnavas, chairman of the BLRC until deposed by OHR Sarajevo (see Chapter Six), likewise captured some elements of the controversy between

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the offices and the problems besetting OHR’s mandate. Contrasting OHR’s efforts in legal reform to his own, he said: The lack of any overall strategy, coordination and cooperation within the OHR is the single greatest contributor to the lack of any meaningful or sustainable legal and judicial reform in Bosnia and Herzegovina. By outsourcing to international organizations or depending on nongovernmental organizations to produce a coherent and consistent body of legislation, the OHR has, in essence, subcontracted its mandate, and, as a result, placed itself at the mercy of these international and nongovernmental organizations, which, far too often, disagree with one another or are engaged in pursuing their own agendas. It should not be surprising that what is often produced is a hodge-podge of drafts that are usually met with skepticism at best and disdain at worst by national experts.2 Needless to say, these published comments hardly helped ease the troubled relationship between the two OHRs, but they were broadly accurate. The first signs of serious policy friction emerging from the offices’ animosity were in May 2002, when there was a clash between BFAO and OHR Sarajevo about implementation in the District of state reforms to centralise administration of Entity judiciaries. High Representative Wolfgang Petritsch imposed a raft of legislation overriding Entity and District legislation regulating judges and prosecutors,3 that in the view of Supervisor Henry Clarke clearly violated the Final Award because it gave to Entity officials power of appointments of judges in the District. The legislation established three ‘High Judicial and Prosecutorial Councils’ (‘HJPCs’). There would be one for each Entity, each with authority for appointment of all judges and prosecutors in that Entity. Each Entity HJPC would also appoint members to a state HJPC, which would itself have responsibility for appointing state and Brčko judges and prosecutors. Clarke argued that this would violate the Final Award, which provides that the Entities are to have no legal authority within the District (Clarke 2005).4 The subsequent High Representative Paddy Ashdown agreed with Clarke to change the legislative structure, to create an overarching state body responsible for all such appointments in both Entities and the District. But in the course of these negotiations a new legal issue emerged, which subsequently came to be known as the ‘transfer of competences controversy’. The ‘transfer of competences controversy’ and state-building Article III.1 of the Constitution of Bosnia and Herzegovina provides a narrow list, agreed at Dayton, of state ‘competences’: that is, areas in which the state, as opposed to the Entities, has responsibility. There are only

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eight, including ‘foreign policy’, ‘customs policy’, ‘immigration…policy’ and the like. All other powers are the province of the Entities, who under the Dayton Constitution are the far more significant political units. However, Article III.5(a) anticipates an increase in state competences, providing that ‘Bosnia and Herzegovina shall assume responsibility for such other matters as are agreed by the Entities’. The OHR Sarajevo legal department had interpreted this provision to require that, for the state to assume responsibility in a new sphere not listed in Article III.1, an ‘inter-Entity transfer agreement’ (IETA) must be signed by both Entities, setting out the terms on which a responsibility is granted by the Entities to the state. A number of legal questions arise out of this position. First, how do the Entities execute such an agreement? The Constitution is silent on the issue. The convention that has arisen is that the Entity prime ministers sign such an agreement, although this seems odd: why would it not be the Entity presidents, as the titular ‘heads of state’? It may be presumed a matter of the internal laws and constitutions of the Entities to decide upon the circumstances in which their prime ministers are authorised to sign such agreements, although in fact the laws and constitutions of both the Federation and the RS are silent on the issue. The consent of the Entity legislatures has never been sought or obtained for any IETA; presumably the High Representative would not brook any bureaucratic hurdles beyond signature by a single Entity representative. The constitutionality of an IETA transferring competences over ‘indirect taxes’ from the Entities to the state, signed by the Entity prime ministers, was upheld by the Constitutional Court of Bosnia and Herzegovina in one case,5 although no party addressed the Court on the question of what steps were necessary for an Entity validly to make an agreement pursuant to Article III.5(a), and the Court did not consider the issue in its ruling. Second, can consent granted pursuant to Article III.5(a) be withdrawn, and if so in what circumstances? This issue remained moot until May 2007, when RS Prime Minister Dodik started threatening to withdraw from IETAs already signed. While Dodik was not explicit about which IETAs he would withdraw from, or when and in what circumstances, his threat was sufficient to throw the international community into a general sense of panic, as all the Ashdown-mandated state reforms threatened to come crashing down. It seems extraordinary that nobody had considered at the time they were signed the circumstances in which such agreements might be withdrawn from. All three IETAs are silent on the issue of their termination. No doubt OHR Sarajevo would have said that silence implies permanence and irreversibility; but in that case, signature of an IETA would be tantamount to permanent amendment of the Constitution, an analysis without significant precedent in international or domestic law. The third issue, that became by far the most vexing, is whether the consent of Brčko should be required for such a transfer to take place, and

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what would be the effect of an Article III.5(a) agreement where Brčko’s consent has not been obtained, particularly where the competence in question is one which the Final Award explicitly guarantees to the District. As already noted in Chapter Four, the Constitution, agreed at Dayton and predating all the awards of the tribunal, is silent on the question of the District’s status, and the Final Award does not address the issue explicitly. It was on just this issue that OHR Sarajevo and OHR Brčko sharply disagreed. Clarke insisted that Brčko should formally consent to a transfer of competences over judicial matters to the state, while Ashdown retorted that it was hard enough to procure the two Entities’ signature of an IETA, never mind the two Entities and the District. OHR Sarajevo therefore committed itself to the position that an agreement by the Entities to transfer competences to the state would bind the District even without its consent, and the District has never been invited to sign an IETA. There have only been two IETAs to date, concerning judiciary, dated 11 March 2004, and indirect taxation, dated 5 December 2003. Both are of direct concern to the District, because the reforms these IETAs mandated would strip the District of powers it exercised locally. But it was not even consulted prior to their signature. The very idea of IETAs was the creation of the OHR Sarajevo legal department, who prepared both IETAs and must therefore bear responsibility for the exclusion of the District from the process. Undoubtedly it was a matter of regret that the Final Award did not deal with this issue explicitly. Indeed, as was seen in Chapter Five, the Final Award said remarkably little about the relations between the District and the state, and that it did say was cryptic. No provision was made to give the District representation in the state’s legislative, executive and judicial institutions, or the extent of its capacity to contract with the Entities or enter into treaties with neighbouring states, whereas the Entities’ participation in state organs, and their rights to sign treaties, was spelled out in some detail in the Dayton Constitution. The reason Owen presumably avoided saying too much about the relations between the District and the state was a fear of rendering the Final Award susceptible to the charge that it was inconsistent with the Constitution. He may also have reassured himself with the twin hopes, both of which turned out to be illusory, first, that the international community in general, and OHR in particular, would always have regard for the District’s interests; second, that the state would itself have regard for the District. Both these thoughts were false: OHR because it resented the independence of the Supervisor’s office, the state because it was a condominium of the Entities and both Entities resented the existence and relative prosperity of the District, and harboured the continuing desire to absorb it into their territory. Indeed Owen’s failure to address in sufficient detail the relationship between the internationalised territory he had created and the state from which it was carved, and its Entity neighbours, was all the more inexplicable given the detailed efforts

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to do so for prior internationalised territories. For each of Danzig, Trieste, Jerusalem, Crete and Cracow, extensive efforts were made to address the legal relationships with neighbours, because there was an acute awareness that the envious neighbours of the internationalised territory would make every effort to undermine it or encroach upon its sovereignty. Poland, deeply resentful of a prosperous and autonomous swathe of German territory with a port within its borders, repeatedly attempted to undermine Danzig’s independence. The vast majority of issues the High Commissioner for Danzig had to resolve formally between 1921 and 1932 concerned attempts by Poland to wrest sovereignty from the Free City or undermine its status in various, often rather petty, ways. Poland tried to require that all rail fares in and out of Danzig be paid only in the Polish currency rather than the currency of Danzig. Poland started affixing Polish post boxes all over the city of Danzig, in an outbreak of what became known as the ‘mailbox wars’, and there were several disputes about Poland’s right to use Danzig port to transfer military materials and to station Polish warships in the harbour. Poland sought to establish as many Polish government offices in Danzig as possible, to boost the Polish population and then claimed diplomatic immunity for all Polish staff so employed.6 Thus the principal issue on which international intervention was required was the resolution of this array of disputes with Danzig’s neighbour. But notwithstanding this warning from recent history Owen, seemingly constrained by the straitjacket of the DPA into which he felt his plan for internationalisation of Brčko would have to fit, decided to leave a legal vacuum within one of the most important issues facing any internationalised territory. He sought to cut all ties between the District and the Entities, but this proved to be unrealistic in some instances (railways, pension funds, social insurance contributions) and legal ambiguities arose from the fact that these issues were not explicitly addressed in the Final Award. Likewise, Owen did not address the relationship between the District and the state in more than the most opaque terms, and he did not seem to appreciate that the state was (or would evolve into) not a separate set of politically independent institutions but just a dysfunctional amalgam of Entity interests. The controversy over the transfer of competences was the direct result of these ambiguities: an attempt by resentful political units, both domestic and international, to encroach upon the District’s autonomy, in much the same way as did Poland with the Free City of Danzig. The controversy over the transfer of competences might be characterised as a clash of political and legal stances, OHR Brčko adopting the (compelling) legal position that the District could not be deprived by joint action of the Entities of a right given to it by the Final Award, when the Final Award specifically stated that the Entities were deprived of authority within the District. But for reasons of political pragmatism OHR Sarajevo was horrified that the already infuriatingly hard (or in Ashdown’s words,

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‘impossibly sclerotic’) process of state-building could be rendered yet more complicated by the introduction of a third party, on top of the Entities, with whom they had to negotiate. However, it is hard to see this political argument as more than trite. There are three political units directly beneath the state in Bosnia and Herzegovina: two Entities and the District. If the state need not negotiate with one of them, and can simply impose upon it without any effective representation in the state’s decision-making process, then that unit’s interests will inevitably be ignored. This is all the more the case when that unit is significantly smaller than the others and so has less political bargaining power. The Ashdown position was a recipe for slow political strangulation of the District. This is not mere theoretical speculation: it has a very close contemporary precedent. It is exactly what happened to the city of Washington, DC, denied representation in either house of the federal legislature in the United States on the theory that the District of Columbia is not a state. (The US Constitution provides only for voting representation for states in each such house.) As a result, the federal government has repeatedly passed legislation affecting the residents of the District of Columbia without any form of input by them into the legislative process, spawning the slogan ‘taxation without representation’ that appears on Washington, DC car licence plates as part of the campaign for the District of Columbia to be granted statehood through constitutional amendment. The position of the District of Brčko is in fact weaker than that of the position of the District of Columbia, because Brčko is not the capital of Bosnia in the way that Washington, DC is the capital of the United States. Despite the District of Columbia’s status as a capital, it has been persistently disregarded by federal legislators; precisely the same mistake was being made again with Brčko District, which could expect to be treated even more prejudicially because it is not a capital city at all and the state legislators and executive officials never had to go there or live there. OHR Sarajevo also argued that the OHR Brčko reading of the transfer of competences controversy is inconsistent with the Constitution: it compels Article III.5(a) to be reread as ‘Bosnia and Herzegovina shall assume responsibility for such other matters as are agreed by the Entities and Brčko District…’ [extra words underlined]. This argument also seems fallacious. The District does not need to assert that any IETA requires its signature to be effective. It can take the more moderate position, quite consistent with Article III.5(a), that the Entities are free to agree a transfer of their own competences to the state without the consent of the District, but that any such agreement will not bind the District without its consent: that is to say, without the consent of the District, the state will exercise the transferred competence, but not within the territory of the District. The state’s authority will therefore contain a geographical lacuna unless the

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District’s consent is obtained. This washes away the political argument against the District in its entirety. Yet another argument recurrently used by OHR Sarajevo in the context of the transfer of competences controversy was that the existence of the District as a unit of highly autonomous local self-government was inconsistent with the modern European state, even with EU membership. It is therefore an anomaly: at best a necessary evil to resolve a vexing territorial dispute, but something to be more or less quickly eliminated and assimilated into the state. This view seems to have prevailed as early as the era of High Representative Carlos Westendorp, when he made his extended telephone call seeking to persuade Owen not to issue the Final Award. But the argument is more than faintly absurd. Many members of the European Union have highly autonomous territories within their national boundaries. The reasons for their existence are often historical, or ethnic, or the consequence of past violent confrontations, and the political units created as a result have often lasted for extended periods. It is worth pausing to consider European parallels to Brčko District, to appreciate that it is not an anomaly to be erased but a model of autonomous local government for which there is significant precedent. The French ‘special status’ region of Corsica has had increasingly large levels of autonomy granted to it in new local constitutions in 1982, 1991 and 2000. Aruba and the Netherlands Antilles were from 1954 formally part of the Netherlands (that is to say, under its sovereignty) but with high degrees of autonomy, including their own legal and judicial systems. The Isle of Man has near-complete legal, taxation and political autonomy from the United Kingdom, the vast majority of whose laws do not apply in its territory unless the island’s local parliament explicitly adopts them. The Aland Islands were contested territory between Sweden and Finland whose status was finally resolved by the Council of the League of Nations in 1921. (The Council had within the League of Nations a role equivalent to the Security Council in the United Nations.) Sovereignty over the territory, which has a Swedish-speaking majority, was granted to Finland. However, it enjoys considerable autonomy from the Finnish central government. Its Assembly has broad legislative powers in areas that are the province of the central Parliament elsewhere in Finland, and it has a separate education system. The Basque Country, an autonomous region of northern Spain in which the majority of the population has a cultural identity distinct from the rest of Spain including a separate language, has a 75-member parliament, its own taxation system, its own court system, police force and its own rules on bilingual education. Trentino/South Tyrol is an autonomous region within northern Italy with an ethnically mixed population speaking three different languages (Italian, German and Ladin). It has a separate constitution with provisions for consociational power-sharing within its parliament and presidency.

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None of these arrangements is inconsistent with EU membership for the countries in question. Nor do they seem to hinder effective functioning of the central government. They are autonomous models of local government in each case tailored for regions with distinctive histories and in some cases divisive ethnic issues. Nobody has ever suggested that these arrangements are problematic or a blockage to EU membership. Moreover, although EU membership for Switzerland is undoubtedly a long way off, nobody has ever suggested that the Swiss system of government, in which 26 highly decentralised cantons exercise the majority of governmental powers locally, would prove a hindrance to its accession to the European Union. The idea that the European Union would force drastic constitutional reform upon Switzerland as a precondition for membership is quite fanciful. The OHR arguments were quite disingenuous, yet they spun out of control into an oft-repeated mantra bouncing throughout the international community and the hallways of the PIC, until their noise was so deafening that in discussions of the District nobody could think of anything else. But to understand the level of hostility to the District that the international community seemed to acquire from 2003, one must look a little deeper than the arguments themselves. The case OHR Sarajevo made against the District, that it possesses an illegitimate degree of autonomy, seemed to be premised upon the frustrations faced by the international community in dealing with Republika Srpska. It was always an open secret that the international community resented the creation of the RS at Dayton, it being the maximum to which they could pressure the Serb representatives at the negotiations to agree. The entire federal structure of Bosnia and Herzegovina, with its extremely weak central state, was the product of the Serbs’ insistence upon a highly autonomous quasi-sovereign unit that would give the appearance that the territory they had conquered had the trappings of its own state. The Bosniacs, and to a lesser extent the Croats, had always been treated as the favoured parties in the perceptions of the international community in Bosnia and Herzegovina. This may well have been with some justification: the perception, probably correct, was that Serb forces were responsible for far more of the war crimes, ethnic cleansing and civilian deaths than the Croat or Bosniac forces.7 Be that as it may, the efforts of the international community ever since Dayton have been focused upon undermining the RS and the principles of ethnic purity and political autonomy on which it is based. Latterly, the best way of doing this was seen as building up the institutions of a centralised state, in which power would be shared between the three ethnic groups and mono-ethnic political institutions of the kind found in the RS would become decreasingly important. By the time of High Representative Paddy Ashdown (May 2002 to January 2006), the strategy was clear: place control over the money and the monopoly of force within state institutions, and the RS would gradually

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fade away. Therefore the state-building reforms Ashdown pushed were taxation (creating a state indirect taxation authority that would collect the majority of taxes and distribute them), judiciary, defence (to centralise the management of the Entity armed forces) and police. Domestically, the centralisation agenda was principally a Bosniac goal. The Bosniacs, being at least a plurality (and possibly a bare majority) of the population of Bosnia and Herzegovina, could hope to dominate state-level political institutions. The Serbs and the Croats, always being minorities, could never hope to do that. The Serb goal was initially to procure independence of the RS, and latterly (once international pressure on Serbia foreclosed the possibility of an imminent union of the RS with Serbia) the more modest aim of maintaining its autonomy against encroachments by the state that were being pushed by the international community. In the early days after the war, the Croats also pursued a decentralisation agenda. Until they were dismantled in 2001 upon liquidation of Herzegovačka Banka, the Bosnian Croats had established exclusively Croat parallel institutions within Croat-dominated Herzegovina, and were not genuinely participating in the formal institutions of the Federation. Herzegovačka Banka was a Bosnian Croat bank used to finance the parallel institutions, placed into a liquidation procedure by High Representative Wolfgang Petritsch in 2001 (OHR 2001d) in an attempt to choke off the funds being used to finance these illegal political structures. An American ‘provisional administrator’, Tony Robinson, was appointed to run the bank’s affairs, but she was subsequently dismissed by High Representative Schwarz-Schilling in December 2006, after spending vast sums in a liquidation process that turned out to be inordinately complicated because of the extent of the bank’s connections with Croat businesses in Bosnia and Herzegovina (OHR 2006c) and parted company with OHR under acrimonious circumstances. However, her mission was essentially successful, if expensive. After the financing mechanism for the parallel Croat institutions was swept away, and political support from Zagreb for the Bosnian Croats started to wane after Croatian President Franjo Tuđman’s death in December 1999, the plan to pursue an independent Croat state of Herzeg–Bosna lost traction. Bosnian Croats also received disproportionate representation in state institutions, in many cases as much as one-third, whereas they comprised perhaps only 10 per cent of the post-war population. Moreover, the predominantly Croat parts of Bosnia were not all contiguous and were more difficult to separate from the main corpus of Bosnian territory. The principal Bosnian Croat city, Mostar in south west Bosnia and Herzegovina, is divided, its eastern half being populated by some 50,000 or more Bosniacs, making it very hard to separate Croat-dominated West Mostar as a Bosnian Croat capital. For all these reasons, Croats were more equivocal about the state-building process than were Serbs. But they still harboured a desire for the ideal of their own independent autonomous territory free of

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either Serb or Bosniac influence: a goal to which OHR’s state-building initiative was quite opposed. If the international community’s agenda was centralisation to undermine the RS, then the existence of the District was a step in the wrong direction in pursuing that goal. It was a third federal unit, with its own autonomy almost exactly of the kind the Entities, including the RS, had. This is probably the best explanation of why OHR remained unremittingly hostile to the District’s interests. While the existence of the District harmed the RS in one sense, by depriving it of territorial continuity, it also benefited the RS, because it made the federal structure of the country yet more complicated and so gave the impression that it was less susceptible to simplifying centralisation. OHR had become quite exasperated in their negotiations with the Bosnian Serbs in pursuing the state-building agenda. Serb politicians would obstruct every state-building initiative, agreeing upon reforms only when threatened with dismissal by the High Representative, and then seeking to secure terms for those reforms that could later be subverted. The indirect taxation authority, a state body established pursuant to the IETA centralising collection of indirect taxes, was one instance of this; the Serbs managed to insert into the law that the Ministers of Finance of both Entities could veto all the major decisions of the authority’s governing board, allowing them to wreck its operation whenever it suited them. Only bewildering incompetence on the part of OHR and the intern-ational community allowed the legislation to be enacted in such a form. In turn, OHR had no desire to have to negotiate and pressure not just the RS to pursue reforms, but also Brčko District. For OHR Sarajevo, Brčko had the potential to be another recalcitrant Entity. Of course Brčko was nothing of the sort. The usual dynamic in the Ashdown-era state-level reforms was the following. The Bosniacs would agree to every proposal made by OHR, giving the impression of high levels of cooperation. But legislation, promptly adopted by cantonal parliaments in predominantly Bosniac cantons at the request of the international community, would be ignored or subsequently misapplied if inconvenient. The Croats would complain about under-representation of their minority interests and would thereby extract concessions from the international community allowing them to be over-represented. The Serbs would refuse every proposal point blank, unless their jobs were threatened. This was the monster of political interaction between domestic and international officials that OHR’s presence had created. But Brčko did not fit into it. Because Brčko was politically weak on account of its small size and lack of constitutional recognition, Brčko District officials of every ethnicity tended to support state-level political initiatives provided they got a fair deal. Without any votes in the State parliament, Brčko had little political leverage beyond the lobbying powers of the Supervisor, and therefore tended to be agreeable to most political proposals made to them, on the basis that there

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was little to be gained from opposition. Moreover, the relatively high standards of rule of law prevailing within the District meant that once statelevel reforms were instituted, they were more likely to be implemented effectively and in good faith in Brčko than elsewhere in the country. The international community in Sarajevo panicked about Brčko’s autonomy ruining their plans for centralisation, but there is virtually no evidence to suggest that their concerns were warranted. In the context of this highly confused debate the international community was having with itself, the issue of European Union integration was often used as a tool. One of the instruments in the armoury that the international community could use to attack the autonomy of the RS was that integration into ‘Euro–Atlantic institutions’ was inevitable and necessary, but the existence of the Entities was inconsistent with that. Thus the European Union required reforms centralising power in state institutions before a stabilisation and association agreement or ‘SAA’ (the first step in the process of accession of a candidate state to the European Union) could be signed. When an international community initiative on police reform, initiated by Ashdown in 2005, stalled in early 2007, this type of mantra was often heard. Police reform was a plan, pushed by OHR, to bring all the different police forces in Bosnia and Herzegovina (Federation cantons, Republika Srpska and District) under a single state-level command structure. The stated rationale for police reform was that European Union accession requires police forces to be structured like this. This was an absurd assertion. The structure of police forces is different in every European Union country. There is no common ‘EU standard’ prescribing that every police force must come under a single command structure. In most EU countries, the police structure is quite complex, with local, regional and state-level police services. However, this fiction was repeated so frequently that the EU even came to believe it itself. EU Commissioner for Enlargement, Olli Rehn, whenever he came to Bosnia and Herzegovina would restate the mantra that an SAA could not be signed until a centralising plan on police reform had been agreed upon. Thankfully the relevant EU officials did not take the same line towards the United Kingdom when it acceded to the European Community in 1973, as at the time it had no centralised police structure and indeed still does not: each county has its own independent police force. Moreover, the notion that the police should have a single management structure seems nonsensical in the context of Bosnia and Herzegovina. In discussions within the international community on police reform, an obsession emerged with discussing ‘police regions’. The idea touted was that, managed from a single command centre in Sarajevo, Bosnia and Herzegovina’s police would be divided for logistical purposes into a series of regions. The inevitable question was therefore whether the territory of the RS would comprise a single police region, or whether the regions would

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‘cross the IEBL’. The RS government would countenance no such thing whereas Bosniac politicians, supported by the international community, insisted upon it. But whatever the motives of the RS politicians for advancing it, the RS position was the only logical one. The RS had different criminal laws, different codes of criminal procedure and different laws regulating police conduct, from the Federation, and indeed each canton in the Federation had different rules from one another. The District again had its own rules in each of these areas. The idea that ‘police regions’ should ‘cross the IEBL’ would therefore have the absurd consequence that a police officer would be governed by different standards pertaining to his own conduct, and would be investigating different crimes, depending on which side of the IEBL he was standing within his police region when he was executing his official duties. It hardly makes sense to have a centralised police force where there is no single criminal law or code of criminal procedure and evidence throughout its territory, and so before the international community plan for police reform could possibly have effect, a vast process of legal harmonisation of the cantons’, Entities’ and the District’s rules on criminal law and procedure would have been necessary. Nobody seemed to have considered this, perhaps because it involved too much work and therefore did not fit the truncated time scale to which OHR sought to operate. But OHR had persuaded the EU to sign on to the morass of policy confusions in the EU’s official policy on SAA negotiations. After two and a half years of failed initiatives, attempts to achieve police reform meeting the EU’s stated criteria of centralising police administration were quietly dropped in late 2007, on the pretext of having reached an empty agreement.8 Bosnia signed an SAA with the EU on 16 June 2008, without any meaningful police reform having been undertaken. Nonetheless, the attempts to achieve agreement upon police reform, and their consistent failures, were one of the principal political dynamics within Bosnia from late 2005. Successive High Representatives from Ashdown onward impaled themselves upon unsuccessful negotiations aimed at achieving this impossible and unnecessary goal. Because it was impossible to achieve, and yet was set up as an essential hurdle, the efforts focused upon it impeded much of the other work the international community was doing and gave an impression of repeated failure of OHR’s initiatives. It also precluded the EU from engaging with Bosnia as early as might have been useful. The 2004 District elections and early attempts to close BFAO Because the terms of the state law enacted pursuant to the Inter-Entity Transfer Agreement transferring powers over the judiciary to the state were reasonably fair to the District, the transfer of competences controversy initially remained academic. Nobody disputed that the District would have

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consented, had it been asked, and the District did not in fact object to the operation of the new state institutions established to regulate the judiciary. One weakness of a locally regulated judiciary is that lawyers and judges know each other well, which makes impartial selection of judges difficult, and any procedure to investigate complaints and discipline judges extremely sensitive. The District judiciary therefore supported the Ashdown initiative to transfer these competences to a central state body. However, this issue was soon to be subsumed into another OHR Sarajevo initiative: a plan to close OHR’s regional offices, including Brčko. A broader struggle emerged between the ‘two OHRs’ and the transfer of competences controversy became enmeshed in the ensuing diplomatic civil war. Ashdown had become the High Representative in May 2002 with the stated intention of being the last person to occupy the post. (He failed; at the time of writing there have been three more.) To achieve this end, he embarked upon an aggressive plan of state-building (to transfer powers from the Entities to central state bodies). This plan has been the subject of some academic criticism, to the effect that ‘…state institutions are not capable of further assumption of responsibilities thrown at them by the international community…because they do not have the professional and administrative capacity even for their existing responsibilities’ (Clarke 2005; Friedrich Ebert Foundation 2005). In other words, Ashdown was pursuing reforms at a quite unsustainable pace, motivated by a personal desire to himself finish the job of High Representative and preside over the closure of OHR. In an attempt to demonstrate tangible products of his labours, he also pursued radical downsizing of OHR. Ashdown presided over severe cuts of OHR staff, from some 700 in November 2002 to approximately 250 by the beginning of 2006. He closed an extensive network of eleven OHR regional and field offices across the country, including in some of Bosnia’s principal towns and cities. He also had the Brčko office in his sights; Brčko had always been the largest OHR office after Sarajevo. Now Brčko was deemed a success Ashdown, justified by a prominent NGO report advocating termination of Supervision (ICG 2003), determined to shut BFAO as a mark of Bosnia’s progress and transition to an ordinary European country. There may also have been a slightly more insidious motivation: the Supervisor had always been a thorn in the side of the High Representative, a separate legal authority able to issue his own decisions without reference to the High Representative, whose powers derived from a different Annex to the DPA. The Supervisor’s powers derive from the awards of the Tribunal, themselves given legal authority by Annex 2 to the DPA; the High Representative’s powers derive from Annex 10 to the DPA. Therefore, at least as a matter of legal principle, there is a compelling argument that the Supervisor’s powers are not subordinate to those of the High Representative, but stand on an equal footing with them; and the purposes for which they may be used were confirmed by the tribunal to be

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broader (see Chapters Three and Five). This coexistence of international legal authorities had always been precarious at best, and relations between the High Representative and the Supervisor had never been particularly good, save in the early days during the tenure of the First High Representative Carl Bildt. Bildt understood the problem of Brčko far more acutely than any of his successors, and appreciated Farrand’s work in a way that was never repeated by any subsequent High Representative. Moreover, Bildt did not have the legal powers that his successors came to acquire from the Bonn meeting of the PIC. But that cooperative attitude had long since evaporated and Ashdown saw closure of BFAO as an opportunity to eliminate his rival proconsul. For Ashdown to execute his plan to close BFAO, he needed American support, as the Brčko project had been the subject of heavy US patronage. To achieve this he went through his Principal Deputy High Representative, US Ambassador Donald Hays. Convention has it that the High Representative is always a European, whereas his ‘Principal Deputy’ (i.e. his second-in-command) is an American. Until 2007 there was also a ‘Senior Deputy’ (i.e. a third-in-command), also a European, but from a nation perceived to be from a different alignment to that of the High Representative. Such a system of national quotas seems quite apt for an international organisation in charge of post-war Bosnia, in which domestic ethnic quotas are so rigidly adhered to. Hays persuaded the State Department to deliver a clear message to Clarke’s successor, Susan R. Johnson, who commenced duties in January 2004. In another indication of the fading priorities of the US government towards Bosnia and Herzegovina, there was another interregnum, of three months, between the departure of Clarke and the arrival of Johnson. Johnson was selected for the position but was then told that she had to remain in Iraq, where she was working for the Coalition Provisional Authority (CPA) at the time. (The CPA was the interim Iraqi administration established by the USA after its invasion of the country in April 2003, a brief discussion of which is provided in Chapter Nine.) The post was described to Johnson as a short-term assignment, in which all she needed to do was hold elections within six months and terminate supervision shortly afterwards. Throughout her mandate (which ran until September 2006) there were calls from the High Representative and the PIC for swift closure of BFAO. OHR likewise placed the Supervisor under pressure not to issue Supervisory Orders, on the grounds that District institutions should be allowed to mature without close incubation. When Johnson concluded that agenda to be unrealistic, there would be a backlash of displeasure from the international community that would undercut the Supervisor and embolden domestic obstructionist political elements within the District. Clarke had succeeded in enacting a District election law in September 2003, prepared by the Organisation for Security and Cooperation in Europe

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(OSCE), an international organisation specialising in election monitoring. OSCE was given carte blanche within the Bosnian international community over election matters, but as already seen in Chapter Four in the context of the 1996 and 1997 elections, their reputation was not impeccable. Some comment on the OSCE election law for Brčko District is appropriate. Essentially it copied and repeated the mistakes of election laws sponsored by the international community and instituted elsewhere in post-war Bosnia. It provided for what is called an ‘open list’ system of voting, which works as follows. Each political party submits a list of candidates, who appear on the ballot paper under the name of the party in the order that the party ranks them. The voter may cast up to 32 votes (although there are only 29 seats in the Assembly); the median number cast in the October 2004 District election under this system was three to five. The number of votes per party is then calculated by adding the number of votes received by each candidate in that party. The 29 seats in the Assembly are then allocated between the parties in proportion to the number of votes each party has received, with a cut-off number of votes, beneath which a party receives no seats. Once it is determined how many votes a party receives, the individuals who occupy seats for that party are those who receive the maximum number of votes within their party’s list. Therefore the political parties may determine the order in which their candidates’ names appear on the ballot papers, but the voters determine which of those candidates receive the seats allocated to the party. Accordingly, the seats in the Assembly belong to individuals, not to parties; and the voters, not the parties, determine the order of priority of the candidates in each party’s list. Should a member of the Assembly leave office during his or her term, a by-election need not be held, because the next person down on that party’s list (as determined by the number of votes received) fills the vacant position. The principal flaw in this system, apart from its daunting complexity, is that it does not create incentives for inter-ethnic voting. In the climate of inter-ethnic suspicion and tension in post-war Bosnia, the vast majority of voters confined their three to five votes for candidates from their own ethnic groups. Consequently very few candidates are elected with significant inter-ethnic support. Thus elected politicians have no incentive to work for the interests of the electorate other than members of their ethnic group, because they will attract no extra votes by doing so. Each elected politician’s rational behaviour will be to pursue his own ethnic group’s interests at the expense of the interests of the other ethnic groups, because that will be his vote-maximising course of action and therefore the course most likely for him to retain elected office when he stands for re-election. In these circumstances persistent failures of cooperation between politicians from different ethnic groups, of the kind so commonly seen throughout post-war Bosnia, are hardly surprising and it is to be expected that nationalist politics prevail. This book is not about improving electoral

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11. One of four A3 (290mm by 420mm) pages of the ballot paper provided to all voters in the October 2004 District elections. Under the ‘open list’ system prepared by OSCE, candidates had a choice of 639 candidates out of which they could vote for a maximum of 32, although there were only 29 vacant positions in the Assembly. The median number of candidates a voter actually voted for was three to five. ‘PROBA’ (‘ПРОБА’ in Cyrillic) means ‘SAMPLE’.

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systems, and that study has been undertaken elsewhere.9 But post-election political instability in Brčko, described below, is to a significant degree a consequence of errors in the electoral system, which could be radically improved. A system in which each voter is compelled to vote for several candidates, including candidates who are not from their ethnic group, might foreclose these problems. (For further discussion see ICG (1998a).) However, despite errors in the nationwide election law, there were two other, perhaps even more serious, mistakes made by the international community elsewhere in Bosnia that caused chronic instability in democratic institutions but, thankfully, were not repeated in Brčko District. The first was formal ethnic quotas and the second national interest vetoes. Both of these are features of a political theory for reconciling divided societies called ‘consociationalism’,10 popular at the time of the Dayton Peace Accords but now regarded as controversial and to a great extent discredited by the Bosnian post-war experience (Belloni 2004). The essence of consociationalism is guaranteed group representation. It harks back to a period of political thinking prior to World War II, in which the emphasis in political theory was placed upon minority rights rather than the universality of human rights. The prevalence of consociationalism in Bosnia has its origins in the Dayton Constitution, the drafters of which were manifestly steeped in its models (Bose 2002). The Constitution of Bosnia and Herzegovina provides for explicit national quotas in every branch of government. The ‘presidency’ consists of three members, one from each principal Bosnian ethnic group. The ethnicity of judges of the Constitutional Court is determined by quota and they are appointed by the Federation and RS parliaments. Members of the House of Representatives (the lower legislative parliament) are elected by quotas from the territory of the Federation and the RS respectively, ensuring mono-ethnic blocs. The House of Peoples (the upper legislative parliament) contains an explicit ethnic quota requiring one-third of its members to be Bosniacs, Croats and Serbs respectively. Similarly, no more than two-thirds of the members of the Council of Ministers ‘may be appointed from the territory of the Federation’ – in other words, at least one-third must be Serbs.11 Deputy ministers must be of a different ‘constituent people’ from ministers. Likewise, legislation in the State parliament must be supported by parliamentarians from both Entities and all three constituent peoples, or it can be blocked, in the name of destruction of vital national interests.12 Thus any one ethnic group can veto legislation even if it is supported by a majority of parliamentarians. The Entity constitutions contain similar provisions, imposed by decisions of the High Representative,13 providing amongst other things that certain executive posts must be held by people of different ethnic groups, a minimum numbers of legislators must be from each ethnic group, and ethnic representation in senior government and local municipal assembly positions

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must be in proportion to the population distribution revealed in the 1991 Bosnia-wide census. The election law of Bosnia and Herzegovina was also amended substantially by the High Representative to achieve similar effects (OHR 2002g). The stated rationale for these amendments was a series of decisions of Bosnia’s Constitutional Court between January and August 2000 (CCBH 2000) that declared certain words in the preambles to the Entities’ constitutions inconsistent with Bosnia’s state constitution. The relevant provisions in the Federation Constitution referred only to Bosniacs and Croats as ‘constituent peoples’, omitting all reference to Serbs; in the RS constitution, the pertinent provisions referred only to Serb people and the Orthodox Christian religion. These decisions of the Constitutional Court became known as the ‘constituent peoples decision’ (although there were several of them) and were highly controversial. The Constitutional Court, which has nine members, two Bosniac, two Croat, two Serb and three international, passed the decisions in each case by a bare 5:4 majority, with the Bosniac and international judges voting for and the Croat and Serb judges voting against. The Court made a series of cryptic remarks about the effect of its decision, talking of the need to protect the rights of all three nations in sub-sovereign political units within Bosnia. But it did not mandate wholesale reform of the Entities’ constitutions or the state election law, still less require the imposition of ethnic quotas and national interest vetoes. On a conservative reading of the decision, the only changes it required was to the preambles (i.e. non-operative parts) of the Entities’ constitutions. However, that was not the view the international community took. OHR used the decision as a pretext to establish constitutional commissions to revise the Entities’ constitutions (ICG 2002b), and the constitutional amendments imposed by the High Representative were the consequence of that process. The whole episode smelled of a stitch-up between the international judges sitting on the Court and OHR to push through constitutional reform by the back door. It helped that the mandates of all the judges on the Court expired at the end of the year in which the decisions were enacted, meaning that the acute acrimony and ethnic division created within the Court by the ethnically divisive judgments would not significantly impair the Court’s work in the longer term: all nine judges would be replaced within a matter of months. The dubious legal pretext aside, the ethnic quota and national veto provisions inserted into the Entities’ constitutions by the High Representative were without doubt a well-intentioned attempt to reverse ethnic cleansing, by providing that even in mono-ethnic political units (the vast majority of the country) ethnic minorities would receive political representation. However, this attempt to rectify wartime ethnic partition

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was very much a second best solution. The best way of reversing ethnic cleansing would have been for the international community to manage a sustainable process of refugee returns, as had been achieved in Brčko. Due to a lack of will or resources within the international community, this was not achieved elsewhere in the country. Instead, introduction of ethnic quotas created a legal fiction that ethnic cleansing had been reversed and population distribution had been returned to 1991 levels, when neither of these things was true. This was quite pernicious. It contributed to institutionalisation of ethnic division in Bosnia, encouraging ethnically based voting and creating legal rules that reinforced ethnic voting patterns and nationalist sentiments. It was not clear what the OHR-mandated consociationalist amendments to the Entity constitutions achieved. The Federation already had some limited quota provisions in its constitution, as the result of the Washington Agreement of 1994 (ending Bosniac–Croat hostilities). Augmenting them, and forcing the same upon the RS, did not significantly change the political realities in the Entities. The RS is still dominated by Serbs, simply by virtue of their being the overwhelming majority of the population. Croat and Bosniac majority cantons are still controlled exclusively by Croat and Bosniac political parties respectively. Politics became more complicated as a result of the OHR amendments, but they were quite complicated enough already within Bosnia’s over-layered government structure. Entity politics have become neither fairer, nor more efficient. Vetoes have produced more blocking of important legislative reforms, not compromise. Quotas have caused the newly created minority jobs to be sidelined. Under the amended RS Constitution, the RS prime minister must have a minimum of five Bosniacs and three Croats within his cabinet of 16 ministers. But the individuals selected for these minority positions are invariably chosen for their loyalty and take no significant role in policy-making. They are grateful for a job without work and they are shadowed by Serbs. The presence of such individuals in the RS government does not assist any Bosniac or Croat residents of the RS who might be discriminated against. Nor does it make the government decision-making process quicker or more efficient and it does not promote economic development. The international community’s political aims have not been achieved by institutional rebalances made merely on paper. ‘Quotas are not a cure for an unhealthy community and their permanent prescription should be avoided whenever possible’ (Binnendijk et al. 2006). Moreover, OHR seemed not to have caught up with the fact that the academic debate had moved on and consociationalism was subject to an increasingly loud chorus of condemnation as a political model for post-conflict societies.14 Quotas, it was argued, reinforce ethnic divisions through explicit institutional recognition of them; national interest vetoes render decision-making impossible, leading to the collapse of political institutions; and electoral mechanisms that encourage people to vote only for politicians from their

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own ethnic group create an incentive against compromise, for any interethnic agreement is subject to the accusation of ‘selling out’ by more radical politicians from one’s own group. None of these problems with consociationalism seemed to trouble OHR, who unthinkingly expanded the consociational model from the state to the Entities. Just as state government institutions were virtually unworkable due to consociational mechanisms, now the Entity governments would become cursed with the same plague. By contrast, the consociational model was not followed at all in Brčko. The Final Award states merely that District institutions shall be ‘multiethnic’, leaving it to the Supervisor to determine how to regulate that multiethnicity. The Statute is similarly vague, stating in one of its most cited provisions that ‘Employment in District institutions shall reflect the composition of the population.’15 While itself hazy, this phrase came to adopt a highly conventional meaning, being understood as a reference to the ethnic key of two Bosniacs to two Serbs to one Croat. This principle was broadly followed, voluntarily, in every District institution, from heads of department and judges of both courts, down through the Auditor’s Office and the Appellate Commission to the cleaners and security guards. Few fake jobs were created just to accommodate a quota; and because the ethnic key applied to every level of the civil service, in relatively few cases would a department or public agency be associated particularly with one ethnic group. Often the ethnic key created individual unfairness, as applicants for civil service positions would be rejected purely on the grounds that their appointment would disturb the ethnic key. Certainly the ethnic key created a bloated bureaucracy, as more people would be hired than were necessary purely so that someone from every ethnic group was included. But for the most part it worked remarkably well, and was perceived by all sides to be fair. Because refugee returns had been so successful, there was no call to return to principles of ethnic distribution reflecting the 1991 census, save amongst the most extreme Bosniac politicians. Likewise, the District Statute and Assembly voting procedures contained no rules allowing for representatives of one national group to veto a majority decision. The councillors had an informal understanding with one another that they would not outvote one another, in what they called a ‘gentlemen’s agreement’, but this approach was far more cooperative and much less corrosive than endless invocations of legal vetoes found in the state and Entity parliaments. The elections themselves, held in October 2004, went smoothly, overseen by OSCE. But subsequent reports emerged of widespread voterigging and voters being paid to vote using pre-marked voting papers.16 The resulting Assembly was deeply fractured, with nine different parties gaining one or more of the 29 seats, and personal relationships and confrontations,

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and corrupt payments, creating seemingly perpetually shifting alliances. The results were as follows: SDP (Social Democratic Party – Bosniac): 6 seats (of which one subsequently defected to SBiH and one went independent) SDS (Serb Democratic Party – Serb): 6 seats SDA (Party of Democratic Action – Bosniac): 4 seats (of which two subsequently split to form a loose alliance with SDP after having been bribed by an SDP supporter) SBiH (Party for Bosnia and Herzegovina – Bosniac): 3 seats (but subsequently gained the SDP defector) HDZ (Croat Democratic Union – Croat): 3 seats SNSD (Alliance of Independent Social Democrats – Serb): 2 seats (of which one subsequently became independent) HSS (Croat Peasants’ Party – Croat): 2 seats SPRS (Socialist Party of Republika Srpska – Serb): 2 seats DS (Democratic Party – Serb): 1 seat (councillor subsequently became independent after the party’s collapse) Interestingly, both SDP and SDS achieved significantly greater levels of support in the October 2004 elections in Brčko than their equivalent national ratings would suggest. (In the October 2006 national elections, both SDP and SDS were relegated to the status of minority opposition parties.) SDP portrays itself as ‘multi-ethnic’ but is a predominantly Bosniac party with a socialist ideological heritage deriving from its succession to the pre-war communist party. SDS was the dominant wartime RS political party, formerly associated with uncompromising Serb nationalism, but it lost power in an SNSD coup in the RS National Assembly in January 2006, following which Milorad Dodik was installed as (and at the time of writing remains) RS prime minister. Since then, SDS has reorganised itself and its leader, Mladen Bosić, subsequently became the Brčko District Assembly councillor. Brčko therefore became something of a power base for both SDP and SDS, as minority national parties. Note that while the ‘interim’ (i.e. appointed) Assembly contained 12 Bosniacs, 12 Serbs and five Croats,

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the elected Assembly altered that delicate balance to 13 Bosniacs, eleven Serbs and five Croats. This was of structural importance, because under the voting rules for passage of the most important decisions (including enactment of legislation and appointments) contained in the District Statute enacted by the Supervisor on 8 March 2000, a three-fifths majority of councillors was required – i.e. 18. Under the 12–12–5 configuration, this meant that either the Bosniacs or the Serbs, acting unanimously, could block a relevant decision, providing a kind of veto protection for national interests of the dominant ethnic groups in the District, without explicit reference to national groups in the Statute. Like the ethnic key, the threefifths voting rule created an informal method of balancing different ethnic groups’ interests without institutionalising ethnic differences in legal rules. However, under the 13–11–5 configuration in the 2004 elected Assembly, the Bosniacs and the Croats could, acting together and unanimously, pass decisions over the unanimous objection of the Serbs. It was therefore argued by Serbs that the Statute’s voting rules, combined with the elected Assembly’s configuration, created an imbalance between Federation and RS representatives. In practice the Bosniacs and Croats never acted unanimously as a bloc to outvote Serbs. There was a threat of this occurring in January 2007, when a coalition appeared to be emerging between Bosniacs and Croats to appoint a Bosniac over a Serb Chief of Police. The issue was defused when the Supervisor intervened to appoint the Serb candidate, to maintain a balance of ethnic powers between the ethnic groups (OHR 2007b). The mayor and the prosecutor were both Bosniacs, and it was felt by the Supervisor’s office that a Bosniac Chief of Police at the same time would tilt the ethnic balance of power too far in the Bosniacs’ favour. The composition of the elected Assembly also tentatively indicated that, as of October 2004, marginally more Bosniacs than Serbs resided in the District, although this is hotly disputed. (Some Serbs claimed that significantly more Serbs than Bosniacs threw away their votes on political parties that did not manage to reach the threshold necessary to obtain even one seat.) Following a countrywide trend, the Supervisor has not permitted a census in the District since the end of the war, both to avoid political instability arising from demands to renegotiate the ethnic key, and to prevent questions of the success of ethnic cleansing and refugee returns from being reopened. The subsequent negotiations over the formation of a government were anything but smooth. The Bosniac-dominated SDP and Serb SDS emerged with the largest number of seats (six each)17 in the 29-member District Assembly. There followed several months of jostling and negotiations as these two rival parties struggled to be the first to form a coalition. In the end SDP prevailed, in a broad coalition with SPRS, SNSD, SBiH, HDZ and HSS. The creation of this government was presented as a victory of non-nationalist parties over nationalist forces, due to the inclusion of SDP

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and the exclusion of SDS, but this result was a close-run affair and the coalition was formed only after great shenanigans. The Bosniacs were determined to ‘get’ the position of mayor, as a sort of vindication or symbolism, but all three Bosniac political parties insisted on their man taking the position. The parties had great difficulty negotiating over which party would get what senior positions and found it impossible to trust one another. When they finally reached agreement on the division of senior jobs, they asked the Supervisor to witness it as a form of guarantee. It was also instrumental that an influential SDP supporter bribed two SDA councillors to abandon their party whip and support the SDP-led coalition. Ismet Dedeić, an influential and extremely wealthy Brčko-based Bosniac businessman from Montenegro widely associated with corruption in the District, has privately admitted paying the bribes. He was removed from District government positions for corruption by Supervisory Orders twice, once on 12 November 2003 (OHR 2003a) following his criminal indictment for sanctioning illegal construction (he was subsequently convicted), and again on 23 March 2007 (OHR 2007c) following an urban planning fraud. The latter order permanently barred him from returning to any position in the District administration. It is also noteworthy that Serbs were drastically underrepresented in the coalition eventually formed, proportionate to the assumed population ratios: they represented only four of the 18 councillors within it, whereas the Bosniacs represented nine and the Croats five. The new District government was formed in December 2005, with Mirsad Đapo, of SDP, as mayor. Đapo was a prominent Bosniac leader in Brčko during the war, when he established and became president of the ‘Exchanges Commission’. The commission traded captured Serbs living in villages occupied by Bosniac and Croat forces in the Brčko area for Bosniacs and Croats detained by RS forces in Brčko port and elsewhere in Serb-occupied Brčko. The number of lives saved as a result can only be the subject of speculation, but is probably in the thousands (Kadrić 1999). From March 2000 until the October 2004 elections, Đapo had served as president of the interim District Assembly, having been appointed by Supervisor Farrand. In contrast to his subsequent performance as mayor, Đapo was generally well regarded by BFAO as president of the Assembly, for his skills as a diplomat and negotiator. Anecdote confirms that Đapo was reluctant to take the position of Brčko mayor, but was compelled to do so by the SDP party President Zlatko Lagumđija. Nationally, SDP was trailing to the other two principal Bosniac political parties amid rumours of corruption and misfeasance and needed an SDP victory in Brčko, for which Đapo, as the principal (relatively) untainted Bosniac politician in the District, had to assume the top job. Đapo’s previous boss in local Bosniac politics, Munib Jusufović, had previously been indicted and convicted by District courts for corruption and abuse of office while mayor of the

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Bosniac municipality of Brčko–Brka prior to establishment of the District. His conviction related to the diversion of post-war reconstruction and aid funds into personal and party bank accounts. In an extraordinary display of political influence, while his sentence of imprisonment was suspended on dubious health grounds pending a legal appeal, Jusufović lobbied the State parliament for enactment of a law on pardon, and then lobbied the State presidency to be granted a pardon pursuant to the law. Noting the abuse to which the legislation could be put, High Representative Ashdown annulled the law in November 2004 (OHR 2004a). But the High Representative’s decision did not provide that the annulment would have retroactive effect, and Jusufović therefore became the only person pardoned under the law. This incident further strained the relationship between BFAO and OHR Sarajevo. Supervisor Johnson had got wind of Jusufović’s plan to be pardoned before the event and had asked OHR Sarajevo to act to prevent it. They ignored her and then expressed great surprise when it happened. It also demoralised the District judiciary, who had undertaken the prosecution at considerable personal and political risk in the first case of its kind in the entire country.18 At the time of writing Jusufović is an SBiH member of the State House of Representatives: eliminated from District political life by his conviction and notoriety, he maintains a state-level political career and for some time retained a behind-the-scenes influence in Brčko. Post-election collapse of District institutions As with political coalitions at the national level in Bosnia and Herzegovina, the government was a motley affair from the start, with no common political platform or agenda amongst the coalition parties. The sole basis for the coalition was a division of the most senior jobs in the government administration (broadly, the heads of government departments) between the coalition political parties, with an implicit understanding that ordinary civil service positions would also be distributed on the same basis as they became available. Đapo developed a reputation as a poor manager and an ineffective administrator. In contrast to appointments previously made by the Supervisor, senior jobs were distributed on political grounds without reference to merit. Under political pressure to find jobs for the party faithful, and with plenty of money in the District budget, the size of the civil service ballooned, from 2,707 in 2002, to 3,070 in 2004, to 3,365 in 2006.19 (These figures do not include government workers informally employed without formal vacancy procedures, under a variety of illegal arrangements variously described as ‘work contracts’ and ‘temporary contracts’, for which no reliable figures exist but which may number as many as an extra 20 per cent.) The quality of District administration plummeted as a result of postelection politicisation of the government. Jobs within the District

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government are amongst the best paid in the entire country. In a regression to the standards that typically applied in a provincial town in pre-war Yugoslavia, a perception arose that such jobs are available only to those with political connections and who are prepared, once in office, to execute the instructions of their political masters, even if this requires contravention of the law. It was as though the Communist Party had been replaced by a series of small parties with the same culture of hegemony over public institutions, albeit that they fought with one another for influence. But the culture of a politically independent civil service was simply not understood. Political corruption became the norm within the District administration, multi-ethnic government hanging together only upon the shaky premise that corrupt payments and well paid jobs would be ‘equitably’ distributed between major political actors representing all three principal ethnic groups. A ‘10 per cent’ (or more) corrupt payments rule emerged in several areas of the District government and its existence is not seriously contested by anyone. Examples of ‘10 per cent’ payments include the following. Civil servants who owed their jobs to certain political parties were obliged to pay 10 per cent of their monthly salaries to that political party. (This is apparently one of the principal sources of SDP party finances; SDP used the District as a slush fund for its national political activities.) Investors who wanted to purchase property owned by the District had to pay a bribe of 10 per cent of the size of the investment. All public property within the territory of the District was deemed by paragraph 12 of the 18 August 1999 Annex to the Final Award to belong to the District, which therefore had the exclusive right of disposal of it. Notwithstanding explicit provision in the same paragraph 12 that no disposal of public property could occur without the Supervisor’s consent, significant quantities of public property were sold at an undervalue for kick-backs in a subversion of public procurement processes, leading BFAO to conduct a substantial audit of government contracts and culminating in a Supervisory Order providing for BFAO’s micromanagement of the disposal process (OHR 2005a). Securing government contracts also required a business to pay kickbacks, and the District tender commission was subverted for this process. It spoke volumes that Ismet Dedeić was chairman of the tender commission,20 at least until his removal by the Supervisor’s office on corruption charges in November 2003. Issuance of urban approvals and construction permits (the Yugoslavian equivalent of planning permission) required a bribe of 10 per cent of the size of the investment to be made, failing which no permits to construct would be issued and legal pretexts would be found to delay indefinitely issuance of the necessary paperwork. The Employment Board, responsible for selection amongst candidates for civil service positions, became corrupted, taking instructions directly from the mayor, as a result of which it was disbanded and for a while enhanced BFAO oversight was imposed over every civil service appointment (OHR 2006d, OHR 2006e).

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One head of a District government department openly bragged that he would charge over 10,000 Bosnian Marks for a professional job within his department.21 At the time of writing these practices are widespread throughout Bosnia and Herzegovina: in the RS the rule seems to be 15 per cent; in the Federation the ‘rates’ vary by canton but may be even higher. There is a widespread perception in Bosnia and Herzegovina that corruption is completely out of control, confirmed by the research literature (World Bank 2000). In part the problem stems from the fact that the war engendered widespread criminality on a grand scale, mostly involving arms sales and smuggling, and criminal profiteers became the new political elites in post-war Bosnia. Several of the District’s wealthiest and most powerful actors are former profiteers and have brought corrupt practices to the heart of government (Andreas 2004). But the main reason for the rampant corruption in the District was its wealth: with so much money in the budget, there was plenty to be secreted away. The District was a victim of its own success. The international community had created a monster, a monolith of corruption in one corner of Bosnia where money was there for the taking because there was so much of it. It is wrong to ascribe responsibility for corruption within District public administration exclusively to the elected government. Widespread corrupt practices, particularly in connection with disposal of public property and assignment of civil service positions, had begun as early as 2001. In part they were simply creations of communist-era standards of conduct and were prevalent throughout the District’s life. Under the socialist system, there were in theory clear procedures that had to be followed for all public officials, but those procedures were subverted for party political ends. One of the most frustrating features of the communist legal system was that legislation governing public administration had always been deliberately cryptic, so that its obscurities and ambiguities could be used to achieve flexible political results. In this context, the notion of rule of law – impartial and equal application of clear legal rules to all persons, based upon public policy and merit – was exceedingly difficult to sustain. Good jobs were available solely for members of the communist party and on the basis of personal connections. Responsibility for property development was likewise assigned on the basis of political and personal affiliation. What was created in the District system, as with Bosnia countrywide, was merely a multi-party version of the previous system. What an outsider would regard as corruption was ingrained cultural practice amongst the communist elites, who now found themselves running multiple political parties after the war. Initially these practices were suppressed by international community micromanagement. But as the DMT, and the office of the Supervisor, stepped back, it was inevitable that officials would revert to their old ways. Elections exacerbated this problem, but were not the sole cause of it.

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Another important contributing factor to the District’s post-election problems should be noted. Elections roughly coincided with the departure of a great deal of international expertise from Brčko. Many internationally funded development projects terminated in the early months of Johnson’s mandate or just before she arrived, and the expatriate community rapidly shrank, so that by the middle of 2005 the number of civilian international officials in the District numbered less than a dozen. With this a great deal of management skills in running District institutions was lost and the local actors were not sufficiently gifted to replace them. Brčko was a provincial town, and while traditionally it was one of Bosnia’s more prosperous municipalities it was not imbued with vast quantities of intellectual capital. The most able people in the Yugoslav era left to the national capitals. This trend was exacerbated during the war and in the post-war period, as Bosnia experienced the flight of its middle classes. Some 10 per cent of the population of Bosnia fled abroad as refugees during the conflict, never to return. Many of these were the best educated. People who had previously occupied civil service positions had evaporated into the diaspora and were replaced with mediocre nationalists and crooks. There were correspondingly few able and visionary people to occupy key positions in either the public or private sectors; and, once the people who were left took over local ownership of District institutions from the Supervisor’s office, significant backsliding was inevitable. Intellectual flight from Bosnia remains a persistent problem to the present day; there is little to persuade the middle class diaspora to return. In part the new District government was also destabilised by international community statements about their forthcoming disengagement from Bosnia. Domestic actors were not blind to Ashdown’s desire to close OHR North. Seeing the District as a temporary creation of international intervention, likely to implode once BFAO closed, their reactions were twofold. First, the national groups began jockeying for position in anticipation of a ‘post-District’ phase in Brčko’s history, when one ethnic group or the other would dominate the area. Second, foreseeing the District’s collapse, the principal political actors determined to steal as much money as they could while the financially corpulent District remained in existence. As a result of the deterioration in the quality of government, Supervisor Johnson issued a raft of orders aimed at mitigating the consequences of increasingly poor management, and attempting to depoliticise the process of selecting candidates for civil service vacancies.22 The most dramatic of these imposed three new laws on the last day of Johnson’s mandate, 15 September 2006, including a completely new law regulating the conduct of civil servants, a law regulating disposal of public property and a law establishing a ‘public attorney’, a quasi-judicial legal officer to oversee the lawfulness of government transactions (OHR 2006h, OHR 2006i).23 This

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legislation was strongly resisted by most politicians within the government coalition, but anecdotal evidence suggests that with forceful implementation by BFAO, including a series of dismissals for corruption in one government department (OHR 2007c), the reforms have stuck to a degree. The District, like Bosnia and Herzegovina as a whole, suffers from a communist-era culture of public administration, in which personal contacts count for everything and transparent rules count for little. This, combined with a wartime culture of corruption, eviscerated all sense of professional public administration. An entirely new culture of public administration is required, and cultural change is a slow, painful process towards which legal reform can contribute only gradually and with great effort in monitoring and implementation. In tandem with the decline of the District Government, the District Assembly suffered from near-complete collapse after the 2004 elections. While Assembly councillors had been appointed by the Supervisor, BFAO had understandably strong lobbying powers, in part derived from the fact that recalcitrant councillors had been summarily dismissed. The best known example was Supervisor Clarke’s removal of three SDS members of the interim Assembly by Supervisory Order dated 28 November 2001, after they had declared an intention to boycott the Assembly’s work (OHR 2001e). Unsurprisingly, rafts of legislation prepared by the BLRC or OHR North were obediently enacted by the Assembly with little question and the quality of debate was moderate. In stark contrast to the reams of legislation imposed by the High Representative, prior to the 2004 elections the Supervisor imposed only one law, the education law: the principle of multiethnic education in the same classroom so offended councillors’ nationalist sensibilities that even as appointees of the Supervisor they could not be persuaded by BFAO to vote in favour of it. After elections, BFAO’s lobbying power was dramatically reduced, as politicians discovered their own democratic mandates and nationalist political rhetoric dominated debate. If the mayor did not like an OHR initiative, he would delay forwarding it to the Assembly by interminable bureaucratic procedures. Once draft legislation of any consequence came before the Assembly, the Councillors would almost invariably find a component within it that would give rise to inter-ethnic confrontation. Under weak leadership the Assembly became a zoo, with ethnic insults routinely traded in lieu of intelligent debate. Milan Tomić, President of the Assembly after the October 2004 elections, was an SNSD Serb, chosen to preserve the ethnic balance between his office and that of the mayor. Tomić was a former Dean of the Economics Faculty in Brčko District and, while widely regarded as possessing personal integrity, lacked the political aptitude to forge consensus amongst the unruly councillors. The threshold required for passage of most important decisions (a three-fifths majority of all councillors) proved too high for the transaction

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of ordinary business in an elected Assembly, and encouraged boycotts and abstentions because the majority threshold is not a function of the number of councillors attending and voting positively. Therefore an absence or abstention would count as a no vote; a law which has 17 votes for, no votes against and 12 abstentions (or no abstentions but 12 councillors simply do not attend) would fail to pass. Particularly depressing to the District’s prospects of survival after Supervision, the Assembly repeatedly proved itself unable to make key personnel appointments within its mandate, as a result of which the Supervisor had to intervene to make the appointments in lieu.24 OHR North’s relationship to the Assembly became one of frequently threatening to veto offensive Assembly proposals, and several important BFAO-sponsored legislative initiatives in the post-election period had to be imposed by Supervisory Order.25 With the benefit of hindsight, it was clear that any elections would cause significant backsliding. These were politicians used to working in a dictatorial system. There was no tradition of compromise, good faith or political deal making. Instructions came down from futher up the chain, and the political skill lay in observing those instructions, ensuring one’s superior was happy, finding room to wriggle to one’s own benefit and ensuring one’s gradual ascent up through the murky system. There had been chaotic elections in 1990, and then war. Nationwide elections since 1995 had been in the context of a stagnant electoral system based upon ethnic division and nationally pure government units. Elections in the District were supposed to be premised upon a new model of inter-ethnic cooperation. Prior to that, Supervision was merely a continuation of the communist system of dictatorship from above. For politicians in the District, ogres of the communist age, the learning process began only in October 2004. The thought that the international community could pull out of the District shortly after those elections was shockingly naive, but it was a notion born of political expediency within the State Department rather than sound policy. With the ever-present flashing beacon of imminent US withdrawal, it was only to be expected that District politics nosedived. Judicial chaos in the District and the country The judiciary fared better in the post-election period, but was still weakened. It was protected to a degree from political interference by the centralised system of judicial appointments made by the HJPC in Sarajevo, which somewhat prevented the District judiciary from falling hostage to local political loyalties. An independent District Judicial Commission, comprising members of the District Judiciary and ostensibly politically independent members of the public, managed District judicial affairs.26 But the independence of the judiciary was resented by the other branches of government, dominated as they were by political party representatives who

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became infuriated by the relatively meagre influence they could exert upon decisions of the courts. Like most countries in transition from socialism to a market economy, Bosnia has no recent tradition of judicial independence. In the communist system judges were appointed by the Communist Party and were expected, where appropriate, to execute its political will. Therefore any opportunity by politicians to undermine the embryonic sense of judicial independence imposed by the international community was eagerly embraced. The judiciary continued to have some significant successes, including the first war crimes prosecutions in Bosnia and Herzegovina heard by exclusively domestic prosecutors and judges. The first of these cases, Jurošević, was tried in the period March to October 2006. A panel of three Judges (Bosniac, Croat, Serb) heard the case against the Serb defendant (accused of plunder-motivated murder of a Bosniac in wartime RSadministered Brčko in September 1992) and decided unanimously to acquit on the basis of inadequate evidence. The second such case, Kostić, Milošević and Simić, was tried in the period July 2006 to April 2007. Again, a panel of three judges (one from each ethnic group) heard the case against the three Serb defendants (accused of the murder and rape of Bosniacs in May and June 1992) and unanimously decided to acquit two defendants and convict a third, who was sentenced to 15 years’ imprisonment. These instances of ethnically impartial administration of justice were significant successes. But the District judiciary also tripped up over personal animosity between the presidents of the District Basic and Appellate Courts. The (Croat) president of the Basic Court believed his (Serb) counterpart on the Appellate Court was overturning his Court’s decisions for personal rather than professional reasons. The reason for the high rate of reversals was complex. The president of the five-member Appellate Court, Damjan Kaurinović, was a superior lawyer to his Basic Court counterpart Jadranko Grčević, who while a capable manager had the tendency to take disputes personally. Kaurinović saw partial or technical reversals of Basic Court decisions as a method of persuading the Basic Court to raise its game. Grčević saw this as a personal attack on his court’s abilities, and enlisted the help of his school friend, the (then) president of the Constitutional Court Mato Tadić (also Croat), in what for a while became a civil war between the two courts. Tadić had his court accept jurisdiction over, and overturn several decisions, of the District Appellate Court on the supposed ground that they violated the European Convention on Human Rights. One such case was particularly tainted with judicial corruption, and the Supervisor took the extraordinary step of intervening to prevent enfor-cement of a Constitutional Court decision. It is worth pausing to examine this matter in a little detail, as it illustrates the chronic institutional weakness prevailing throughout the judiciary in Bosnia and Herzegovina. While shocking to the western legal practitioner, this story is only the tip of the iceberg of judicial

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corruption in post-war Bosnia, and illustrates the level to which corruption and incompetence permeate every institution in the country, including the very highest. It is also an account of a concerted attempt by state institutions to undermine the District’s autonomous legal system – to pull it into the well of corruption and neglect that characterised the legal system elsewhere in the country. Many allegations of corruption circulated around Tadić, the highly influential and politically connected president of the Constitutional Court of Bosnia and Herzegovina from May 2003 to June 2006. There are nine judges of the Constitutional Court, two from each of the three ethnic groups and three international judges. Entity parliaments appoint the six domestic judges. In the politically radicalised environment of post-war Bosnia, many of the appointees are mere political demagogues with law degrees. Tadić was formerly the Minister of the Interior of the Federation. Rumour had it that Tadić would take money to influence the outcome of cases before the Constitutional Court, and in March 2005 he was indicted for arranging a corrupt payment to a company partially owned by him from the then Croat member of the Bosnian presidency, Dragan Čović. Article VI.1(c) of the Constitution of Bosnia and Herzegovina provides that a judge of the Constitutional Court may be removed only upon a consensus of the other judges of the Court. Despite great pressure from High Representative Ashdown, including a personal telephone call to one international judge on the Court, the other judges refused to remove him, because (for the international judges at least) the quality of the indictment against him was poor.27 This fact itself is worthy of comment. The indictment was raised by the Court of Bosnia and Herzegovina. This, the ‘State Court’, is a controversial institution, established by multiple decrees of the High Representative. Its initial raison d’être was to hear war crimes cases domestically, in the face of absurd and spiralling costs of the ICTY. The International Criminal Tribunal for Yugoslavia first opened its doors in November 1994 pursuant to its establishment in a UN Security Council Resolution (UN 1993b). Its mandate was to try those alleged to be responsible for serious war crimes in the former Yugoslavia since 1991. But it soon became a limp and ineffective behemoth, financially out of control, absorbing vast resources but achieving proportionately modest results. From its establishment until March 2007, the ICTY had cost the international community approximately US$1.25 billion. In that period, it indicted 161 defendants. As of March 2007, five remained at large, including the world’s two most wanted men, Ratko Mladić (military leader of the Bosnian Serb forces) and Radovan Karadžić (civilian leader of the Bosnian Serbs, captured in July 2008).28 A further 62 were in detention pending trial or completion of their trial, eleven had been transferred to local courts and 36 defendants had the cases against them terminated (due to death before conviction or withdrawal of

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the indictment). Only 53 trials had actually been completed, resulting in 48 convictions (three based upon a guilty plea) and five acquittals. An ungenerous critic of the ICTY might therefore conclude that the court has cost the international taxpayer US$7.8 million per indictment or US$23.5 million per full trial: not desperately good value. Add to this political interference in the work of the Court (the US Ambassador to the Hague would have regular meetings with the ICTY’s President), a reputation for financial impropriety (it became standard practice that defence counsel would be expected to kickback substantial proportions of their generous fee incomes paid by the Court to their clients’ families) and the ethnic partiality the prosecutor has apparently shown in indictments (threequarters of those indicted are Serbs), and a poor precedent for international criminal justice emerges from this institution. The Court of Bosnia and Herzegovina was supposed to rectify these problems, by establishing an ostensibly domestic Bosnian court to deal with the greater volume of war crimes trials, freeing up the manifestly bulging docket of the ICTY to hear the most serious of the outstanding cases. It started work in May 2002 and, like so many things in post-war Bosnia, rapidly spiralled downwards in consequence of domestic corruption, lack of interest and international bungling. The Court’s initial jurisdictional mandate was to hear war crimes and organised crime cases in its criminal division and administrative cases against state institutions in its civil division. This in itself was hardly a rational division of labour, given that the same judges were supposed to deal with all three areas but each area was highly specialised and different from the others. In practice political priorities governed, so that the Court had not heard a single case submitted to its administrative list by July 2007, essentially eviscerating the possibility of any judicial review of the decisions of state institutions. The composition of the court included both domestic and international judges, and at first instance at least one (and in war crimes cases always two) international judges would sit in any three-judge panel. There were also a number of international prosecutors, intended to bring a degree of expertise to investigation and prosecution of complex cases that was lacking amongst domestic lawyers. The presence of international officials on the Court created large translation and interpretation costs, and the Court remained exceedingly expensive. The international judges and prosecutors were appointed by decisions of the High Representative, mostly on the basis of diplomatic whim. (There was no formal or transparent process of selection and evaluation.) Because of lack of demand for the international positions, the quality of the judges so appointed was very mixed and their knowledge of the Bosnian legal system, under which they were supposed to be working, mostly minimal. (A good foreign judge would not, on the whole, have had a career in development. He or she would be content in his judicial position in his or her home country, and there was little to induce

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him or her to relocate to war-ravaged Sarajevo to work in an entirely alien legal system in an incompetently administered court.) International judges would be appointed for two-year positions but were reappointed even if they were of poor quality, because the international community did not know how to find alternative candidates. OHR was forced to introduce to its decisions appointing international judges a requirement that they reside in Bosnia and Herzegovina, because some judges were ‘commuting’ from their home countries and were rarely present in Sarajevo. The practice of the Court was awash with elementary mistakes, in significant part deriving from the lack of familiarity of international judges and prosecutors with domestic procedures. Imagine appointing French judges to American courts, or vice versa, and expecting them to survive. Thankfully the mistakes the international community made in establishing the State Court were not repeated in Brčko District. Instead of using foreign judges without the necessary experience and knowledge, the District method was to handselect and train competent local judges and institutionalise their political independence. Yet the sad truth remains that this good work was undermined by the chaos prevailing elsewhere in the legal system in Bosnia, and in the State Court the international community was to a great extent responsible for that chaos. The fiasco of the Tadić trial is a good illustration of the problems with the State Court. The indictment over which the international judges on the Constitutional Court refused to be moved was prepared by an international prosecutor in the Court of Bosnia and Herzegovina. One foreign judge privately commented that it was so bad it would have been struck out without trial in a developed legal system. And so indeed it came to pass. In November 2006 Tadić was acquitted of receiving the corrupt payment. But the scandalous quality of the case rested in the fact that Čović was nonetheless convicted of paying it to him. Čović never served a single day in prison despite being sentenced to five years. He was released pending appeal on a bail of 3,100,000 KM, or about 1,600,000 Euros: an extraordinary sum by the standards of Bosnia and Herzegovina. In September 2006, Čović’s appeal was allowed by a panel of purely domestic judges in a decision that gave no reasons for overturning the conviction,29 and a final verdict of acquittal was entered in June 2008 (again by a purely domestic panel) on the theory that the Court had no jurisdiction to hear the action. Since his original conviction Čović lived in Mostar and became the president of HDZ, the dominant Croat political party in Bosnia and Herzegovina, appearing regularly in public to speak on the party’s behalf. But things got worse. In a pre-emptive strike, the Constitutional Court, sitting on a panel including Tadić (but not including any of the international judges on the Court), issued a decision only a week before his acquittal that would, in the event of his conviction, have required Tadić to have been immediately released on unconditional bail: AP1426/05 Men-

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zilović (CCBH 2006a). The Menzilović judgment was absurd: it interpreted the Bosnian criminal codes (in this provision identical in the state, the Entities and the District) as requiring a convict’s immediate release upon pronunciation of his guilt until the time the sentence is pronounced, contrary to established and unanimous sentencing practice throughout the country. It would therefore have applied to anyone convicted of any offence in any Court in Bosnia and Herzegovina. It was a blueprint for letting criminals roam the streets. Its consequences were so pernicious that the High Representative intervened to rewrite all four criminal codes in Bosnia and Herzegovina to annul its effect, upon an extraordinary joint petition by the presidents of all of Bosnia’s other Courts (OHR 2007k). But nobody in the international community paused to complain that Tadić should have recused himself in the case, or sought to inform the international judges on the Court that their fellow judges were issuing extraordinary rulings threatening to undermine the entire criminal legal system of Bosnia and Herzegovina, seemingly for the sake of keeping the all-powerful Tadić from the risk of prison. It beggars belief why no action was taken against the Constitutional Court on this occasion. The affair of the Čović and Tadić trial received significant adverse publicity and undermined the reputation of the state-level legal system in Bosnia and Herzegovina established by the international community. The Constitutional Court case in which Supervisor Johnson intervened was another instance of flagrant judicial corruption by Tadić. The case, AP214/03 Privredna Banka d.d. Sarjaevo v. Pavlović International Bank Slobomir A.D. Bijeljina and Brčko District (CCBH 2006b and CCBH 2004a), threatened to unwind a privatisation undertaken by Supervisor Clarke, undermining investors’ confidence in the District as a legally stable destination for their funds. It involved an extraordinary judicial sleight-of-hand in an incredible conspiracy between the judges of the Constitutional Court, masterminded by Tadić. It is a fascinating illustration of ingenious judicial corruption. Prior to 1991, there were many state-owned companies operating throughout Yugoslavia. (These were usually structured as ‘socially owned companies’, denoting a form of management which in practice meant that senior management within the company would be appointed by committees within the Communist Party and would be accountable for their conduct exclusively through Party mechanisms.) Privredna Banka (‘Economic Bank’) was one such business, a retail bank with branches in all six Socialist Republics and, importantly for these purposes, in both Entities. The question was therefore what became of the bank after the end of the war: with assets in both Entities, which Entity acquired ownership? In practice, each Entity had established its own parallel versions of such companies during the war. The Federation had established a Privredna Banka Sarajevo, controlling all those branches of the pre-war bank in Federation territory; the RS had established a company called Privredna Banka East Sarajevo,30

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controlling all the branches in RS territory. So the practical rule that had emerged during and immediately after the war was that all state-owned enterprises (i.e. virtually all companies) would be split into two on geographical lines between the Entities. The economic logic of splitting companies in two in this way was of course negligible. But there was little alternative and this approach was repeated throughout the former Yugoslavia:31 a Privredna Banka Zagreb emerged, owning all the branches of the bank located in Croatia, and so forth. Within Bosnia, any other model was politically unrealistic. Prior to the war, most large socially owned companies had their centre of operations in Sarajevo, after the war an almost exclusively Bosniac city in an almost exclusively Bosniac canton. Therefore a rule that gave a company to the Entity (or canton) in whose territory the company’s seat or centre of operations lay would have been unacceptable to and ignored by Serbs and Croats. The legal status of companies which suffered this fate, to be split into two or more pieces along the ceasefire lines of the Bosnian war, became particularly important when an attempt was made to kick-start the post-war economy by privatising the former state-owned companies. Without a clear legal rule stating who was entitled to privatise which assets and in the face of complete refusal by the Entities to cooperate, no privatisations would be able even to commence. Therefore in 1998 High Representative Carlos Westendorp bowed to the political reality and issued his landmark Decision imposing the Framework Law on Privatisation of Banks and other Enterprises of Bosnia and Herzegovina (OHR 1998g), which established a territorial rule for privatisations: each Entity had the legal right to privatise the assets of socially-owned companies located on its territory. Companies would be split in two and each Entity would privatise its part. This rule was extended to the District by the Final Award,32 and Clarke’s privatisations proceeded upon this assumption. The Federation was unhappy with this principle. If implemented, it would lose the opportunity to assert that the bulk of the corporate assets in the country actually belonged to it because most significant pre-war Bosnian companies had their head offices in Sarajevo. It therefore sought to actively undermine Westendorp’s law. When the Federation privatised companies, it listed on their balance sheets assets located in the RS and the District. This was true for Privredna Banka that had a branch in central Brčko in an attractive Habsburg building in a Bosniac area of town. Clarke complained to the Federation authorities when they listed this building on their privatisation balance sheet for Privredna Banka Sarajevo, but to no avail. So he pushed forward with privatising the branch nonetheless. He sold it to an American Serb entrepreneur, Slobodan Pavlović. The Bosniac-controlled Federation authorities were incensed. Interestingly, Brčko Bosniacs cared little: Privredna Banka Sarajevo was controlled by SDA (in its privatisation it had essentially been transferred to a political party, under

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an Entity voucher privatisation of the kind described in Chapter Six). But SDA had little influence in the District, in which the predominant Bosniac political party was SDP. So to defeat Clarke’s plan they turned to one of the few domestic institutions based outside the District that could nonetheless have an influence within it: the Constitutional Court. The problem they had was that under Westendorp’s Framework Law and the Final Award, Clarke was entirely within his rights to sell the Brčko branch of Privredna Banka separately from the Federation privatisation. But mere considerations of legality were no constraint for the wily and intelligent Tadić, particularly when there was an opportunity for him to side with his old school friend in a personal and ethnic feud with the president of the District Appellate Court. Before Clarke completed the privatisation, Privredna Banka Sarajevo (PBS) commenced an action in the District Basic Court, seeking rectification of the District’s register of land ownership. During the war, the name of the owner recorded in the land register had been the pre-war company, Privredna Banka Sarajevo. The Federation successor to the company had kept the same name as the pre-war company. During the war, the RS Brčko authorities had, in common with many other companies, simply crossed out the name of the Sarajevo-based company and replaced it with an RS substitute company to denote RS control. In this case the company the RS authorities had written into the land register as the new owner was called Privredna Banka Brčko (PBB). (Someone had gone to the land register, crossed out the name of PBS using a biro and written in the name of PBB.) In the chaos of the war and during the period preceding the Final Award, PBB did only modest business and the building remained semi-derelict. In its court action, PBS sought rectification of the register to delete the name of PBB and restore the name of PBS to the register, on the grounds that there was no legal basis for the RS biro amendment to the land register. Its action failed before both the District Basic Court and the Appellate Court, on the grounds that whatever the legality of the RS authorities’ wartime change to the land register, this record was now superseded as the legal authority governing ownership of the building. PBS did not own the building now, even if it had been unlawful to transfer title to PBB. Therefore PBS would not be granted the relief sought. So far so good. But PBS now appealed to the Constitutional Court. The Court issued a judgment ‘in chambers’ (i.e. with a panel of only five judges deliberating and issuing the decision, rather than the full nine; none of the three international judges was a member of the panel). The decision (CCBH 2004a) was quite incoherent. It held that the District Appellate Court had made an error of law, although its explanation of the error made no sense. (It talked of ‘arbitrary application of a Supervisory Order’, but did not explain what this meant or why it was relevant. The reason why PBS was not the owner of the bank was because the Final Award had made the

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District the owner of the building, in common with all other public property.) Nor did the Court explain why the Appellate Court had made that error, but the Basic Court (which had reached essentially the same conclusion) had not. Such an error of law, ruled the Constitutional Court, is a violation of the right to a fair trial. Therefore the Constitutional Court had jurisdiction over the appeal, as the right to a fair trial is a right under the European Convention on Human Rights, which is explicitly incorporated into the Bosnian Constitution.33 It then remitted the case to the District Basic Court ‘for further proceedings consistent with this ruling’. The extent of this absurdity is immediately apparent to any constitutional lawyer, but for the benefit of the lay reader should be spelled out. The jurisdiction of a Constitutional Court is generally limited to issues of constitutional law, and this same restriction applied to the Bosnian Constitutional Court under the Bosnian Constitution.34 There was no issue of constitutional law in this case and the Constitutional Court should not have accepted the appeal. The right to a fair trial is indeed a fundamental civil right under the European Convention on Human Rights, and is protected by the Bosnian Constitution. It is what is known in the common law as the right of ‘due process’. It is captured in Article 6(1) of the European Convention, which provides in relevant part that ‘In the determination of his civil rights or civil obligations…everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law’. The essence of the right to a fair trial is a fair procedure; it relates to the form of a trial and the procedures used during it, not to the substance of the law the court applies in reaching its decision. Examples of violations of the right to a fair trial include a failure to provide adequate legal representation; a biased judge; endless delays; or unreasonable refusal to admit exculpating evidence. But an error of law is not a violation of the right to a fair trial, as the European Court of Human Rights has itself confirmed.35 By asserting that any error of law is a violation of the right to a fair trial, the Constitutional Court turned itself into a general court of appellate jurisdiction, entitled to hear every dispute and not just those to which, under the Constitution, its jurisdiction should be confined. This nonsense was compounded by the fact that the Constitutional Court did not make it clear what error of law the lower court had committed, and the remedy it ordered was also indeterminate. The case was remitted to the Basic Court – not the Appellate Court – which would have made most sense had the Appellate Court committed an error of law, so it could correct its mistake. The Constitutional Court instructed the Basic Court to reconsider the case in a way that complied with Article 6(1) of the European Convention. But the Constitutional Court did not explain what the Basic Court had to do to ensure this compliance, so the Basic Court was left without guidance on how to implement the Constitutional Court’s decision. To the casual observer, this might look like mere incompetence;

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but to the cynical monitor of Bosnian legal politics, it was a mark of something altogether more sinister. And so it came to pass. In the mean time, Supervisor Clarke had completed the sale of the Privredna Banka building in Brčko to Pavlović. After the Constitutional Court’s decision the plaintiff, PBS, completely re-crafted its case, amending the parties to the action, dropping PBB as a defendant and instead adding Pavlović. It also changed the cause of action and remedy sought, seeking eviction of Pavlović on the grounds of unlawful occupation, and the restoration of the property to PBS. In the first clear sign of collusion, the Basic Court then granted the new remedy PBS sought, on the extraordinary theory that it was compelled to do so by the Constitutional Court’s ruling. This was of course absurd, first because the Constitutional Court’s ruling was quite unclear about what it required, and second because the case when it had been before the Constitutional Court concerned a different cause of action with different defendants and different remedies. It could have no conceivable application to the new amended action. The Appellate Court then issued a preliminary decision overturning the Basic Court’s decision on the ground that it was absurd. And finally came the dénouement of judicial conspiracy: suddenly the Constitutional Court issued a new ruling, without anyone appealing to it and indeed before the appeal procedure before the Appellate Court had been completed. The new decision (CCBH 2006b) purported to be a ruling to enforce its prior decision. It overturned the new Appellate Court decision and required immediate enforcement of the latter Basic Court decision in favour of PBS and against Pavlović, as though the new action had been successful. In this way the Constitutional Court had ruled in favour of PBS without ever addressing the merits of its claim, which were entirely nugatory; and without ever giving the defendant the opportunity to be heard before it. It had achieved restoration of the Brčko branch of Privredna Banka to PBS and flouted both the Framework Law and the Final Award, without issuing a ruling discussing any of the legal merits of the claim. In the process, the Constitutional Court had overturned correct decisions of the Appellate Court twice. This was pure judicial terrorism. And it was repeated on several other occasions, in cases with extremely similar patterns.36 But this was one occasion too many. Supervisor Johnson, spotting the extreme irregularity of the proceedings and concerned about allowing a judicial precedent that unwound District privatisations to stand, intervened to prevent enforcement of the decision (OHR 2006m). Although it was a highly controversial step to interfere explicitly with judicial process in this way, both within the international community (OHR Sarajevo refused to support her) and domestically (her actions were heavily criticised in the Bosniac SDA press), her order was subsequently used as a precedent for the High Representative to annul a Constitutional Court decision that required the Bosnian courts to review his decisions to remove people from public office (OHR 2007l; see Chapter

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Four). Johnson’s action seemed to fire a shot across the bows of the Constitutional Court, which subsequently desisted from interfering in District legal proceedings, and forced the presidents of the District courts to adopt an uneasy ceasefire in their civil war. However, Pavlović ultimately lost his court case: Johnson’s order expired and Johnson’s successor as Supervisor refused to renew it. The tragedy of this sorry story of judicial misconduct was that in the pre-war period, the Yugoslav legal system was relatively good by the standards of communist Eastern Europe, and the independence and integrity of the judiciary was to an extent respected. The war had heavily politicised the judiciary, post-war Bosnian society corrupted them and the Dayton Constitution had turned the Constitutional Court into a political infighting ring in which the only agreements that could be reached were dirty. If this was the standard set by the highest court in the land, it was no surprise that the rot spread throughout the Bosnian legal system at every level. The District courts became isolated, but fading, beacons of independence in a broader sea of Bosnian judicial malfeasance. Just as the rest of the country was falling to pieces, so Brčko, after the 2004 elections, started heading the same way. Now it was the turn of OHR, and BFAO, to go the way of Bosnia. From 2005, the international community’s role in the country would rapidly become a shambles. The final episode in this story is an account of that collapse, before we turn to a survey of the lessons to be drawn from the Brčko project.

8 THE DECLINE OF SUPERVISION

At the same time as domestic District institutions were suffering from a natural backsliding after democratic elections, the authority of the Supervisor was being progressively undermined by the actions of the international community. District institutions were destabilised in consequence, as local politicians began to question how credible a political force the institution of the Supervisor, previously responsible for maintaining stability and balance between the three principal ethnic groups in Brčko, remained. High Representative Ashdown’s strong desire to close BFAO became well known, but he faced formidable theoretical and practical restraints in achieving his goal. First, the legal framework for closure of BFAO was quite different from that for closing other OHR offices. The Final Award anticipated the Supervisor making a certification to the tribunal when satisfied that a legal test was met. Thus the institution of the Supervisor could not be terminated until after that certification had been made. In other words, the Supervisor’s prior consent was required to close the office. Supervisor Johnson (January 2004 to September 2006) appreciated that the District’s reforms were going in reverse and was most reluctant to provide the certification that would pave the way to BFAO’s closure. But Ashdown was determined to be the last High Representative, and therefore did not brook any messages running contrary to the impression he consistently conveyed that everything in Bosnia was moving forward. He was keen to secure closure of BFAO as a milestone towards termination of OHR’s mandate, and Johnson’s message that multi-ethnic democracy in the District was unwinding the international community’s efforts there must have been distinctly discomforting. Ashdown wanted the office closed and wanted Johnson to sign off. He did not want to hear that the only international community success story in Bosnia was going to pot. The relations between the Sarajevo and Brčko offices of OHR reached an all-time low as a result. By 2004 the US administration had lost interest in Brčko and they never really recovered it. Johnson had been sent to wrap things up. The grants and projects previously based in Brčko had ended and the dev-elopment

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funds previously in the gift of the Supervisor had withered away. By 2005, USAID and World Bank projects were mostly confined to the Entities, and Brčko was excluded as a matter of course. The US State Department under Republican President George W. Bush no longer much interest in the Balkans, intervention in which was seen as a project of the previous Democratic President Bill Clinton. The US administration there-fore wanted the Europeans to take over exclusive responsibility for Bosnia, and took every opportunity to reduce their formal role in the region. Moreover, American travails in the military occupation of Iraq (2003–) were absorbing all the State Department’s human and financial resources, which were accordingly diverted from the Balkans. Closure of OHR was seen as an opportunity for US withdrawal from Bosnia. The last US troops left Bosnia and Herzegovina in March 2004, including those based in the District. There was pressure within the State Department to terminate the Supervisor as a funded position and to reassign the funds for it elsewhere. There had for a long time been an uneasy standoff between the Supervisor and the High Representative, mollified by State Department support for supervision. Once that support evaporated, the conflict between the two offices erupted into open warfare in an astonishing failure of diplomacy. The confrontation between the offices catalysed personal animosities, always present in the tense relations in the offices, which now exacerbated and fed into a rash of poor policy decisions. Correspondence between OHR Sarajevo and OHR Brčko became pathetically petty. BFAO’s budgets would be arbitrarily cut and its accounts subject to overly stren-uous audit. Behind-the-scenes correspondence would advocate dismissal of senior BFAO staff members. OHR Sarajevo would draft shoddy notes on Brčko’s legal and political status that were never shared with OHR Brčko. These would subsequently emerge within the international community, cited as agreed authority. OHR Sarajevo’s legal department would draft state laws that applied to Brčko in all sorts of detrimental ways, without consulting BFAO. These laws would then be imposed by the High Representative, without ever informing the BD authorities. (Throughout post-war Bosnia, almost every state law of importance has been enacted by decisions of the High Representative, the State parliament rarely being capable of functioning save to enact laws of no consequence, to generate the impression of industry.) Some years later, in the course of some piece of casual research, somebody would find out that some state law or other purported to bind the District, and a bombshell would be ignited because the law would be quite inconsistent with District law and practice. The state election law, referred to in Chapter Seven, is one such example. There were many others, including the Law on the Court of Bosnia and Herzegovina, that purported to give the State Court jurisdiction over complaints of administrative wrongdoing by District public institutions;1 and the Law on Ministerial and Government Appointments, that set out recruitment

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procedures for District civil servants inconsistent with the District Statute and District legislation (OHR 2003b). There was a steadfast refusal by OHR Sarajevo and the US Embassy to include Brčko in multiple rounds of talks on constitutional reforms, despite the absence of a reference to Brčko being the biggest single lacuna in the Bosnian Constitution (BIRN 2007). This attitude contributed to Brčko’s increasing isolation from the central state and made legal and political reform of Bosnia far harder than it need have been. By the international community attacking or neglecting Brčko at every opportunity, Brčko was transformed into a problem that could have been easily avoided. District politicians and BFAO officials would perpetually run into confrontations with state institutions that need never have happened. And state institutions, perceiving a hostility in the international community to Brčko District, would take any opportunities to attack it, motivated by jealousy of higher salaries, or political rivalries (Brčko was perceived as an SDP stronghold, a party that was weak at the state level), or by a desire to destabilise District institutions and reopen its political status as a point of competition between the Entities. The tribunal fuse reignited The greatest single trigger for complete collapse of the relations between the two OHR offices was the ‘transfer of competences’ controversy which, in an extraordinary turn of events, ended up being litigated before Roberts Owen and the Brčko Tribunal. To understand how this occurred, we should recap briefly on the state-building agenda of High Representative Ashdown (May 2002 to January 2006). Ashdown had an agenda for ‘normalising’ Bosnia which involved using his dictatorial powers to force through centralising powers of governance in multi-ethnic central state institutions. If control over money, and the monopoly on force, could be placed in the hands of central government institutions, he reasoned, the Entities and cantons would gradually fade away into insignificance. However, he faced two challenges to his project. The first was the dysfunctional State parliament, in which all three national groups held ethnic quota vetoes and perpetually wielded them as weapons to frustrate the others; thus the parliament could not pass any legislation of importance at all. This was a simple problem for Ashdown to solve; he became a oneman parliament for Bosnia, personally signing into law hundreds of pages of legislation establishing state institutions using High Representative’s decisions, and he also personally lobbied for legislation his office had produced which, given his ferocious reputation for removing public officials, was generally extremely effective.2 Usually the laws enacted as a result of these methods had been drafted in OHR Sarajevo’s legal department or by international community experts, and were subject to only token consultation with domestic actors. They were of variable quality

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or a poor fit with Bosnia’s domestic legal system, having been written first in the English language by drafters unfamiliar with the prevailing domestic legal conventions or rules. But the bigger problem for Ashdown was the Dayton Constitution. Article III.1 listed only eight competences of central state institutions and they were extremely limited.3 Ashdown wanted a far more expansive central government. One solution to this was simply to ignore the Constitution; several of the laws Ashdown enacted were of highly dubious constitutionality, concerning matters that were manifestly not state competences under the Dayton Constitution.4 But for some of his most fundamental reforms it seems that he did not have the gall to ignore the Constitution in its entirety. Instead he relied upon a provision in the Dayton Constitution allowing for the state to ‘assume responsibility for such other matters as are agreed by the Entities’.5 By pressuring Entity representatives into signing IETAs, through express or implied threats of removal or other unpleasantness imposed by High Representative’s decision, Ashdown could expand significantly the scope of his state-building project. The most controversial of Ashdown’s reforms was that establishing central state control over indirect taxes, including customs and excise charges and, most importantly, a new state-wide sales tax based on the European Union standard model (value added tax, or VAT) that would replace customs and sales taxes charged by the Entities and the District. To administer collection and distribution of these taxes, a new state ‘indirect taxation authority’ (ITA) would be established. Because indirect taxation had been an Entity (and therefore District) competence, an IETA would be needed, and it was this over which Ashdown and Supervisor Johnson clashed heavily. As with the IETA establishing the HJPC (see Chapter Seven), Ashdown insisted that the IETA would be signed by the Entities only, and the District would be bound by whatever the Entities agreed. The District was asked for neither its consent nor its opinion. Johnson saw the fact that the ITA reforms had been imposed upon the District as a dangerous political precedent. She reasoned that if state institutions could deprive the District of a function it had previously undertaken itself, particularly a function as fundamental as tax collection, the very existence of the District could be placed in jeopardy. The District had no representation in state institutions, no votes in the State parliament and no political support from the state. The state was a dysfunctional condominium of Entity politicians, themselves no friends of the District because the dominant political parties in the District had little representation in state institutions. If the ITA precedent stood, District institutions could be dismembered through hostile state action. Therefore although the IETA had been signed during the tenure of Johnson’s predecessor Supervisor Clarke, Johnson pushed Ashdown to revisit the ‘transfer of competences’ issue, much to his fury. To support her cause,

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Johnson invited Roberts Owen to visit the District, which he did in February 2005. This visit precipitated an unusual chain of events. Johnson, Mayor Đapo and other District officials discussed the transfer of competences issue with Owen, who confirmed that in his view Brčko was in the right and the District could not have its powers removed from it without its consent. But this message did not seem to filter through to Ashdown. Frustrated by Johnson’s intransigence on the transfer of com-petences issue, Ashdown sought to override her. He wrote directly to Owen on 4 April 2005, seeking his ‘opinion’ on the question. This was an extraordinarily injudicious decision, and nobody really understands why Ashdown did it. It seems that he was, to say the least, badly advised. His legal department appeared to have recommended to him that there was no doubt his (and their) view on the transfer of competences controversy was correct, and that Owen would therefore obviously and without question agree. Ashdown therefore apparently anticipated Owen’s summary confirmation of his position. But this proved to be a significant strategic blunder, as anyone who had been present during Owen’s visit to the District in February 2005, or anyone familiar with the due process obligations inherent in an arbitration procedure, would have known. Owen replied to Ashdown, in a letter dated 21 April 2005, that it would be inappropriate for him to rule upon so important an issue of interpretation of the Final Award without giving all interested parties an opportunity to present their submissions on the issue. This was only to be expected, for it is in the very essence of a fair legal process that no Court or tribunal can rule on a contentious issue without giving everyone an opportunity to explain why their view should be preferred. Owen therefore invited the Entities, the state, OHR and the District to attend a ‘procedural conference’ to decide how to resolve the matter. Suddenly a litigious process had been unleashed which placed two branches of the same organisation at loggerheads. Despite a late attempt by OHR to stop the hearing, following a belated realisation of the process it had unwittingly commenced, the procedural conference indeed took place over two days in London in June 2005. It was by all accounts a circus. On Johnson’s initiative, the District had retained independent counsel from the Paris office of a US law firm, while Ashdown retained a Scottish advocate previously in his employ. The written submissions prior to the hearing, and the hearing itself, were dominated by strenuous objections from OHR Sarajevo to any jurisdiction on the part of the tribunal to provide any interpretation of the Final Award. This was particularly illogical given that it was OHR that originally sought the tribunal’s guidance on the issue.6 After the hearing there was then a long delay, probably engineered by Owen to lower the diplomatic temperature. Owen subsequently confirmed that the tribunal had jurisdiction to resolve the issue, but did so in January 2006, just as Ashdown was about to leave office. By this time Ashdown’s re-

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placement, Christian Schwarz-Schilling, had already arrived in Sarajevo, and Ashdown was a lame duck; his last day as High Representative was 30 January 2006. In the mean time, Ashdown had become increasingly infuriated by everything. He had wanted to be the last High Representative and was the longest serving person in the position; but by mid 2005 it was clear that he would soon have to leave without the job being finished. For him, the tribunal proceedings, and his inability to close BFAO despite his best efforts, were open sores in his failure to bring a conclusion to international intervention in Bosnia. Reactivation of the tribunal had contributed to the impossibility of what he had been attempting. Now that Ashdown had in effect commenced an action before the tribunal (nicknamed Ashdown v. Johnson in the OHR Legal Department), it would be impossible to close BFAO until the litigation was at an end, as the Supervisor could hardly issue a certification terminating the tribunal’s jurisdiction while live proceedings were ongoing before it. Flailing around in the legal quagmire in which he had immersed himself, Ashdown’s reaction was personal and venomous. He lobbied against Johnson within the State Department in the hope of precipitating her replacement, and also drastically downsized the staff levels in OHR Brčko at the end of 2005 to the extent that it would no longer have sufficient staff to operate effectively. These decisions, and the push to close BFAO, were made for bad reasons, without an understanding of the drastic political downturn that had enveloped the District after its 2004 democratic elections or the role of BFAO in maintaining political stability in the area. An evaluation of Ashdown’s record as High Representative is beyond the scope of this book. But it can be said that despite his numerous achievements, his handling of the Brčko issue was not his finest hour. Ashdown’s consistently negative message towards BFAO was mirrored throughout the OHR organisation. From this point, personal animosities between the Brčko and Sarajevo offices of OHR increased significantly, to the extent that it was virtually impossible to have a productive meeting with staff from both offices attending. Any action from BFAO or the District authorities was treated with alarm and contempt by the broader international community in Sarajevo, interpreted as another act from the Brčko upstarts deliberately disruptive of the solid state-building work of OHR and the state institutions. A convention had previously arisen, as far back as the strong relationship between Bildt and Farrand, that Supervisory Orders were shared in draft with OHR Sarajevo on a consultative basis. Even this well-established convention become unworkable by early 2006, as any draft so shared would be subjected to irrelevant technical objections by OHR Sarajevo staff. It did not help that from the time Ashdown began winding down his activities in late 2005, right through to the mandates of Ashdown’s successors Schwarz-Schilling and Lajčák, the staff of OHR

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Sarajevo were underemployed as OHR started doing ever less, morale collapsed and the institution began slowly to peel apart. Relations between the two OHRs improved only after February 2007, once Johnson’s successor Gregorian held positions both as Supervisor and PDHR (of which more below). After Ashdown’s departure from Bosnia, and following Owen’s ruling on jurisdiction, there was a six-month stay of tribunal proceedings. This was ostensibly at Owen’s suggestion, although it seems that a recommendation was made to him by the US State Department to take a passive role, allowing matters to be resolved by negotiations. There then followed a series of fruitless ‘settlement negotiations’ half-heartedly sponsored by the US government. These negotiations were ostensibly intended to establish a long-term legal relationship between the District and the state, but they were just an international community talking shop and local actors played no serious role in them. The basic idea, amongst OHR and the US embassy, was to string out the tribunal proceedings indefinitely without there being any more hearings or submissions that might create internal conflict within the international community, and certainly without Owen issuing a further ruling. The US intention also seemed to be to postpone matters until they could find a replacement to Johnson, and then wrap things up with a more pliant successor by forcing an unfavourable resolution of the transfer of competences controversy upon Brčko District. The US government and embassy officials seemed not to have any principled view on the transfer of competences controversy; their concern was only that the issue be resolved with a minimum of friction, and for them that meant Brčko District had to lose, because OHR Sarajevo was so implacably opposed to a resolution favourable to Brčko. To keep the negotiations going, the idea of constitutional amendments to recognise Brčko was discussed, but bizarrely was discounted by the US Embassy and OHR Sarajevo as politically unrealistic even though comprehensive constitutional reform was being discussed in parallel by another branch of the US government (see further below). Instead a draft state law on Brčko District, of dubious constitutionality, was prepared.7 Yet the most fundamental issues – the circumstances in which state legislation applies in the District, and the proper resolution of the transfer of competences controversy – were never resolved or even expressly addressed, because of the diametrically opposed positions of the parties. A draft state law was prepared solely by the US Embassy and OHR Sarajevo, and none of the domestic politicians agreed to it.8 It appeased nobody, because it implicitly decided against the District on the transfer of competences controversy (and was therefore rejected by the District); but as compensation it proposed a mechanism allowing the District to delay passage of certain categories of state legislation, which appeared to give the District a right the state and the Entities did not have (and was therefore rejected by the state

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and the Entities). OHR could achieve no domestic political support for the draft despite lobbying and it was subsequently quietly dropped. That the US government could achieve no domestic political consensus on the long-term legal status of the District can hardly be considered a surprise: the ruling of the tribunal was necessary precisely because the domestic parties had never been able to agree upon the District’s status, and remarkably little had changed in that regard over the intervening years. But the truth was that nobody in the State Department cared about Brčko anymore. The official assigned within the embassy to follow Brčko issues was an intern; after the summer of 2006 there was not even that level of concern. The loss of understanding within the State Department over the period 2000 to 2005 about the special political status and sensitivities of the District was perhaps surprising, but it emphasises a lesson about the importance of legally ingraining internationally imposed political reforms of this kind. If political interests change and are no longer sufficient alone to sustain the new model, clear legal protections may be the only line of defence left. While the fruitless negotiations process was ongoing, the District was desperate for a pretext to recommence the formal tribunal process and lift the stay of proceedings, to extract a ruling in its favour from Owen on the transfer of competences controversy, and to stymie the negotiations process that it perceived as an exercise in pressuring it to accept an unfavourable settlement. Rumour also abounded about the imminent end of Johnson’s mandate, and the mayor worried that without the tribunal the US would foist a new Supervisor upon the District, with a hatchet-man agenda of terminating the tribunal’s jurisdiction and closing BFAO. Senior District officials were virtually unanimous in the view that the consequence of this would be the political meltdown of District institutions. The District soon found the pretext to recommence the tribunal proceedings, in the state law on the Indirect Taxation Authority (OGBiH 2003). This law, establishing the operation of the ITA,9 was enacted in December 2003 but was fully implemented only once a state-wide system of VAT was introduced in January 2006. The law had been drafted by OHR Sarajevo but was complex to the point of absurdity. It treated Brčko District and the Entities in fundamentally different ways: on certain critical decisions affecting distributions of revenues between the Entities and the District, the Entities had a veto vote, meaning that decisions could only be made by a consensus between the Entities, but the District had no vote at all. This was bound to cause impossible problems, and indeed it did, almost immediately in January 2006 and throughout the course of the year. The chaos ensuing from its operation would give the District the perfect excuse to pursue the tribunal process further. A little detail about the ITA’s operation is required to explain how all this came about. Under the ITA law, all indirect taxation revenues,

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countrywide, would be paid into a single central account. The ITA would make payments from this account to state institutions to cover their budgeted expenditures. The balance of the account, after these payments, would be distributed periodically between the Entities and the District to fund their institutions. In theory, the state law provided that the proportions in which distributions to the three sub-sovereign units (the two Entities and the District) would be made would be the same as the proportions in which VAT revenues were collected from each territory: so if (for example) twice as much VAT revenue was collected from taxpayers in the territory of the Federation as in the RS, the amount of money distributed from the single account to the Federation would be twice as much as that distributed to the RS. Periodic ‘reallocation coefficients’ would be set, reflecting these proportions. But so much for the theory; the absurdity of the ITA law was that notwithstanding this notionally transparent mechanism for setting reallocation coefficients, decisions on the size of the coefficients were to be made by a ‘Governing Board’ of the ITA, the composition and voting on which was essentially political rather than technical and lacked any mechanism of legal accountability.10 Both Entities had veto votes on the Governing Board, but the District, while an ‘observer’ (meaning it could attend the Board’s meetings), had no vote at all.11 In other words, the agreement of both Entities was required to set reallocation coefficients, but the agreement of the District was not needed. If no agreement between the Entities was reached for a particular period, distributions to the Entities and the District would be frozen; and indeed this happened repeatedly from January 2006 when the system first started working fully. The Entities found it hard to agree on anything at the best of times. But there was an additional hurdle to their cooperation in the Governing Board of the ITA, for the official revenue figures the ITA produced were loaded with adverse political significance. First, the Entities were jealous of the District’s disproportionately large revenue share, a consequence of its economic success and superior standards of business registration. In 2006 and 2007, monthly ITA data were showing between 3.5 per cent and 4 per cent of nationwide VAT revenues to be paid by businesses located in the District, far in excess of its share of the country’s population (slightly more than 2 per cent) or land mass (only around 1 per cent). Second, the same figures revealed that as little as 30 per cent of VAT revenues were sourced in the RS, despite the RS comprising some 34 per cent of the nationwide population. Thus the ITA figures revealed the RS to be a poorhouse. In these circumstances, the only way the Entities could agree on coefficients was by agreeing to reduce the District’s coefficient beneath the proper level revealed by data on VAT returns, and to assign the resulting surplus to the RS. From July 2006, this is exactly what occurred, under the pretext of various manufactured debates about whether the figures kept by the ITA

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about revenue sources were accurate. Notwithstanding the higher data, the District started being given coefficients as low as 2.9 per cent, approximately 25 per cent less than the revenues to which in theory it was entitled. A better illustration could not have been devised of how the District would be short-changed if it had no say in state level reforms. In late July 2006, the District’s counsel used the dispute over ITA coefficients to reignite the tribunal fuse that the US embassy thought it had managed to stamp out by invoking the negotiations process. He developed the District’s position before the tribunal into a fully blown complaint of ‘serious noncompliance’ by the Entities and the state with the Final Award,12 alleging that the ITA law, enacted with the agreement of the Entities but without the District’s consent, and the reallocation decisions the ITA Governing Board issued, violated the principles of self-governing autonomy that the Final Award guaranteed to the District. This allegation, widely circulated around all the main political actors in the country, was political dynamite, given that OHR had itself drafted the law, an international official had been appointed by the High Representative to chair the ITA Governing Board13 and the RS was making repeated growling about the ITA system being unworkable.14 In its submission to the tribunal, the District alleged that the system of veto votes by the Entities on the ITA Governing Board was unlawfully depriving the District of revenue that rightfully belonged to it, violating two Final Award principles. First, the Entities may have no powers in relation to the District;15 if the IETA on the ITA were upheld, and the ‘transfer of competences’ controversy were therefore decided against the District, the Entities could by agreement deprive the District of competences guaranteed to it by the Final Award, thereby giving the Entities power over the District that the Final Award provides they may not have. Second, the Final Award explicitly provides that the District may not be subject to taxation by the Entities.16 This principle would be clearly violated where the Entities could agree to deprive the District of tax revenues that lawfully belonged to it and appropriate those revenues to themselves. In September 2006, Owen responded positively to the District’s request to restart the tribunal procedure, by setting a timetable for delivery of written submissions that anticipated a ruling by the middle of 2007. Nationwide elections were forthcoming in October 2006 and nationalist political rhetoric had reached a crescendo. In just eight months since the end of the optimistic Ashdown reign, the seams of international community achievement in Bosnia were loudly tearing apart. Chaos spreads in the international community By July 2006 the State Department had started to panic. Ashdown’s departure was to a degree driven by a perception within the international

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community that his colonial attitude towards running Bosnia and Herzegovina, involving mass removals of domestic officials and repeated impositions of legislation, was incompatible with the democratic European direction the country should be moving in. Bureaucrats and NGOs within the European Union harboured a particular concern that the coercive and unaccountable ‘Bonn powers’, while perhaps appropriate for the immediate post-war climate of political crisis, had been subject to inexorable mission creep, were being applied in arbitrary and unfair ways, and were no longer justifiable some eleven years after the end of the war (Knaus and Martin 2003; Bieber 2006, p.146). The new High Representative, Christian Schwarz-Schilling, very much had these thoughts in mind when he took up office in February 2006, and in June 2006 he announced that the PIC had decided upon a closure date for OHR of 30 June 2007 (OHR 2006a).17 But the US government could not work out how to terminate Supervision within that time scale, if tribunal proceedings were ongoing and the Supervisor was first supposed to make a certification to the tribunal that would terminate its jurisdiction. Moreover, the certification necessary – that the District’s institutions were functioning ‘effectively and apparently permanently’ – was belied by the message Johnson was delivering about the District’s post-election descent into political crisis. In a case of shoot the messenger, the State Department therefore decided to get rid of Johnson, and shoe in a pliant axe-man for the office in her stead.18 But once again, its problem was that it could not find a willing replacement. The position of Supervisor had become a poisoned chalice. The District was a chaotic mess and nobody wanted to take on the responsibility for making a legal certification that things were otherwise. In the mean time, Brčko was simply being ignored by the international community. Perhaps the most transparent example of this was the proposed package of constitutional reforms for Bosnia and Herzegovina pushed by the US government in April 2006. With support from the United States Institute of Peace, an American NGO, former PDHR Don Hays negotiated a package of amendments to the Dayton Constitution with the leaders of Bosnia’s principal political parties in the second half of 2005. These amendments would have expanded the powers of the state, abolished the rotating state presidency,19 strengthened the council of ministers20 and abolished the principle that connected territory and number of seats in the House of Representatives irrespective of population.21 The amendments were defeated in the state legislature in April 2006, after chaotic lobbying, poor consultation and a sudden vacuum in international political pressure once Ashdown departed Bosnia (Bebler 2006). But it was notable that in an American-sponsored initiative, nobody even considered including constitutional amendments that would recognise Brčko within the package. The amendments to the Bosnian Constitution required to sustain Brčko as a political unit after the end of supervision are considerable. The

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District must be recognised in the Constitution and given specific rights to autonomy from the Entities. It must be given representation in state-level institutions, and the Constitution needs to clarify which powers the state exercises within the District and which it does not. Finally, it must be given standing to make complaints of violation of its constitutional rights before the Constitutional Court. None of these matters were addressed in the Hays amendments. To round out the picture of the catastrophic collapse from which OHR suffered in 2006, a few words should be said in passing about Christian Schwarz-Schilling. His story is a little sad and reveals the potent malice of diplomatic circles. Appointed as High Representative to replace Paddy Ashdown on 31 January 2006, he was chosen because he espoused a philosophy of domestic ownership and international disengagement, which was the message the international community wanted to hear at a time when it had lost interest in Bosnia. Schwarz-Schilling had stood behind an NGO report that was highly critical of the way Ashdown was using the Bonn powers to drive domestic reforms without democratic accountability or legal review (Knaus and Martin 2003). He was therefore perceived as the appropriate candidate to preside over the closure of OHR, and on 23 June 2006, under his watch, the PIC announced an OHR closure date of 31 June 2007 (OHR 2006a). However, the precariousness of Bosnia and Herzegovina’s domestic political situation became increasingly apparent throughout 2006, as Schwarz-Schilling remained faithful to his hands-off approach. He refused to sanction officials or impose legislative reform, with the result that politicians on all sides started reverting to their nationalist agendas, previously barely suppressed by threats of dismissal by Ashdown and his other heavy-handed predecessors. There was much wilful blindness within the international community about the consequences of scaling down international intervention in Bosnia; even by June 2006 it was clear that things were collapsing but nobody would admit it. State institutions were not functioning. Nationalist political rhetoric was ramped up in advance of the October 2006 national elections, with competing demagogues Milorad Dodik (prime minister of the RS) calling for a referendum on RS independence and Haris Silajdzić (successful Bosniac candidate for the State Presidency) describing the RS as a genocidal creation and calling for its abolition. Incautious international observers, keen to echo the messages Washington and Brussels wanted to hear, attributed the political meltdown to the forthcoming elections rather than the more restrained role OHR was taking. This was foolish and belied the evidence: the political rhetoric heard was far worse than in any other national election since 1996. By late January 2007, a state government had still not been formed after the elections in early October, political rhetoric was still extremely heated and anticipation of the Ahtisaari plan for Kosovan independence generated further calls for the ethnic partition of Bosnia into independent statelets.22 At this point the

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international community lost its nerve. Almost overnight, it became common wisdom that a June 2007 closure of OHR would precipitate the country’s political collapse, and a decision was made to extend its mandate. But a scapegoat was required for this volte-face. After a meeting of senior Foreign Service officials of various countries in Washington, DC, German Chancellor Angela Merkel was persuaded to telephone Schwarz-Schilling on 19 January 2007 and explain to him that he was fired with effect from 30 June 2007. He therefore became the shortest serving High Representative to date. The story was promptly leaked to domestic newspapers (who had a front-page field day) by disloyal OHR officials. On 27 February 2007 the PIC decided to extend the closure date for OHR to 30 June 2008.23 In the mean time the State Department had pressured a reluctant Raffi Gregorian, a respected NATO political adviser in Sarajevo, to take the position of Brčko Supervisor replacing Johnson, a role he assumed on 16 September 2006.24 At 42, he was the youngest and most junior official in the US administration to hold the office. He was given the improbable task list of resolving legal relations between the District and the state, terminating the live proceedings before the tribunal, and closing the office in the shortest possible time scale. To sweeten the bitter pill, orders for him (as a US military reservist) to serve in Iraq were indefinitely deferred. He was subsequently appointed, in February 2007, as Principal Deputy High Representative (PDHR), an office which he was to hold concurrently with that of Brčko Supervisor. This meteoric rise made Gregorian the most powerful international official in Bosnia and Herzegovina, as SchwarzSchilling’s announced departure had rendered him a lame duck. Notably, Johnson had also been offered the position of PDHR upon her arrival in Bosnia and Herzegovina, to be held concurrently with the position of Supervisor. She turned the offer down, saying that it was impossible simultaneously to do justice to both positions. Indeed Gregorian’s assumption of both roles placed him in an acute conflict of interests: as Supervisor he was mandated to act in the District’s best interests, but as PDHR he was bound to be faithful to the long-held OHR line on the transfer of competences controversy and a broader desire to close the BFAO, or at least reduce its activities. Moreover, one of the Supervisor’s most important roles, particularly in the late stage of Supervision, was to act as an advocate for the District in the face of implacable opposition to the District project both in certain sections of the international community (in particular OHR Sarajevo) and in state institutions. Gregorian found it impossible to perform this role, as his relations with state and international officials were subordinated to the mandate to pursue broader international community goals of centralising state power and withdrawal from Bosnia, goals in many ways hostile to the District. This conflict of interests reached its peak in April 2007 when

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Gregorian, in his capacity as PDHR, sanctioned a brief filed with the tribunal by the OHR legal department disputing the legitimacy of the District’s claim before it, and wrote to Owen ex parte (i.e. without informing the other parties to the dispute) asking him to suspend the tribunal’s proceedings. (Owen swiftly rebuffed him.) Subsequently, when in June 2007 the mayor was advised by his external legal counsel to write to the tribunal objecting to an OHR-imposed settlement of the claim before it, Gregorian threatened to remove him from office if the letter was sent (of which more below). The most dramatic consequence of Gregorian’s simultaneous appointments, however, was the sheer lack of time he devoted to the job of Supervisor compared to his predecessors. The position of Supervisor had been an exhausting full-time job, mediating in political disputes, providing technical assistance and marketing to government projects and private investments, and lobbying and legislating where the Assembly was unable to act. But all this activity rapidly ceased. Once appointed PDHR, Gregorian typically spent only one day every two weeks in Brčko, and BFAO lost management direction. Gregorian exhibited a tendency to believe Brčko’s politicians were beneath him, his proper position being around the table at the state level. He palpably preferred not to even stay the night in Brčko, when he did come generally arriving very late in the evening and leaving in the late afternoon the next day. In time, Gregorian’s perpetual absence from Brčko became notorious amongst local public officials. By the summer of 2007, the office was achieving little and staff were only going through the motions of pretending to work. There were regular unexplained personnel absences and everyone was looking for new jobs. Like a recalcitrant absentee landlord, Gregorian cared little for the District and wished only that it cause him no problems, expressing visible irritation whenever a Brčko issue created state-level controversy that might involve him. Although the Statute was significantly rewritten under his tenure,25 and corrupt officials were dismissed,26 the pace of reforms pushed by BFAO stalled, staff morale in BFAO plummeted and the institution of the Brčko Supervisor slowly disintegrated. Likewise, economic development also stalled, although public sector wages remained inflated. By August 2007 the District’s net average wage was 680 KM per month, having fallen slightly from its 690 KM zenith in Clarke’s era. But by this time it had been overtaken by Sarajevo Canton (815 KM), Sarajevo city (910 KM) and even the politically highly dysfunctional Herzegovina–Neretva canton (698 KM), including the divided city of Mostar.27 In part the rest of the country had caught up with Brčko. In part the problem was Brčko’s inability to get its principal asset, the port, up and running to any significant degree. To a great extent, the active marketing of the District to investors, undertaken by BFAO staff, had stopped, and the elected govern-ment had not competently taken up the role. Outside investors had become nervous

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about investing in the District in light of uncertainty about the future status of the territory once supervision ceased. In telling illustrations of his conflict of interests, Gregorian exhibited a tendency to place state-level political strategies above the interests of the District, making decisions about the District that would appease national politicians in his negotiations with them. Notoriously, he permitted the mayor to appoint Zecheriah Osmić, a close associate of SDP national president, Zlatko Lagumdžija, and a notorious nationalist and crook, as a senior mayor’s adviser. (Osmić had been in charge of distribution of foreign aid packages – including US food and medical supplies – to Bosniac communities in northern Bosnia during the war, but it was alleged that instead of directing their distribution as they were intended, he sold them for his personal gain.) Mayor Đapo was under SDP central office pressure to appoint Osmić; the purpose of Osmić’s appointment was to act as a shadow mayor to control Đapo, whom Lagumdžija did not trust. SDP had acquired a reputation for corruption under Lagumdžija’s poor leadership and had lost heavily at the national level in October 2006. Lagumdžija therefore wanted to exercise control over the last SDP power base in Bosnia, the outpost of Brčko. To maintain his independence, Đapo wanted Gregorian to veto the appointment. Everyone in the District knew Osmić to be a pernicious influence to have at the centre of politics in the District, and there were copious legal grounds to prohibit his appointment. But Gregorian counted Lagumdžija as one of his personal friends and eventually permitted the appointment to be made in May 2007. The influence Gregorian did retain within the District, notwithstanding his perpetual absence, derived from his draconian and unprecedented tendency to fire District officials without due process (e.g. OHR (2007c)). His ruthlessness caused many to fear him. This may fit in well with the autocratic political culture historically prevailing in the western Balkans, and made him appear as a ‘strong man’; it is doubtful whether such an approach was useful in the late period of international intervention prevailing in Bosnia and Herzegovina in 2007, when promotion of human rights, rule of law and domestic ownership were arguably more important than keeping domestic actors in line through terror. Gregorian’s orders became capricious, reaching an apex of absurdity when he fined an Assembly councillor for making an obscene gesture on television (OHR 2007j). To many this appeared as further evidence that he was using the office of the Supervisor as a tool in his political battles at the national level. The councillor fined was the head of the party for Bosnia and Herzegovina (SBiH) in Brčko; Gregorian had recently clashed with the national leader of SBiH and Bosniac member of the State presidency, Haris Silajdzić, whom he blamed for confounding Gregorian’s single-handed attempts early in 2007 to reach an agreement between the political parties on police reform (see Chapter Seven). Gregorian also demonstrated that he had remarkably thin skin in

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the face of public criticism. He wrote to a democratically elected councillor in the District Assembly, summoning him for making public comments critical of his staff and threatening ‘immediate action’, causing the councillor to publish a subsequent retraction.28 Gregorian’s threats created a general atmosphere of panic about his office’s reactions to the most trivial things and suppressed public debate about BFAO’s work. Interestingly, the influence of Gregorian at the national level once appointed PDHR also coincided with a recurrence of controversial and draconian decisions by the new High Representative Miroslav Lajčák who replaced Schwarz-Sch-illing in July 2007. These decisions involved unprecedented violations of individuals’ civil liberties, including confiscation of passports of 94 people without a court order and without even sending them written decisions explaining why this was taking place.29 By October 2007 a disturbing new trend had emerged within the activities of OHR Brčko: its decisions had become subject to influence by Serb hard-liners working on its staff. Gregorian knew little either of District politics or the politics of BFAO, because he was rarely there. Office policies thus became subject to direction by the predominantly Serb local personnel. Anticipating the closure of the office, they sought subsequent jobs. Well-paid jobs of the kind found in OHR (up to 1,600 Euros per month net) were extremely rare in post-war Bosnia, and were available only in the public sector and only to those with political connections. To advance their own future employment interests, Serb BFAO staff thus came to acquire close connections with Serb political parties in Brčko. Their principal constituency was impoverished Serb refugees displaced to Brčko after the end of the war, and they had a hard-line agenda to dismantle the District’s multi-ethnic institutions and ensure Brčko town was once more dominated by Serbs in readiness for RS secession. In Gregorian’s absence, some Serb staff in BFAO thus used their increased influence to push for extreme policies to destabilise the moderate multiethnic and Bosniac-led District Government coalition. Hence BFAO started advancing policies aimed at destroying the District. The first hint of this came with the resignation of the head of the Public Records department, Hajrudin Jusufović, in November 2007 (OHR 2007o). Jusufović resigned only because Gregorian told him that if he did not, he would be dismissed and a final draft of a Supervisory Order removing him from public office had been prepared. His ostensible crime, in the eyes of Gregorian, was negligence in keeping up to date voters’ records, but this was an allegation without foundation.30 This forced resignation was most damaging for the government coalition: Jusufović was the cousin of senior SBiH party official Munib Jusufović, and his holding this senior position within the District Government was essential to keep the otherwise hardline nationalist Bosniac party SBiH within the folds of the moderate coalition (and on whom the mayor relied to achieve a majority in the

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District Assembly). The campaign to force Jusufović from office had been hatched within the hallways of BFAO over a period of time and Gregorian, ignorant of the political subtleties, was more interested in embarking upon an aggressive assertion of the ‘Bonn powers’ than in the justice of forcing Jusufović out or of the harm that this might subsequently do to the District. But this use of the Supervisor’s authority appeared quite restrained compared to one of the most egregious abuses of international power that followed. In December 2007, Gregorian signed an order suspending the salaries of the entire District government and every councillor in the District Assembly (OHR 2007p). The reason given for this was that the Assembly was one day late in adopting the budget. No explanation of the need for collective punishment was given. No reference was made in the Order to the provisions for interim budgets where a budget is late, and the year-end had not been reached (the Order was dated 4 December and that year’s budget covered the period to 31 December), so the interim budget provisions had not yet been engaged. The fact that it was the responsibility of the District’s Finance Directorate, not the government, to prepare the budget was seemingly overlooked; the Finance Directorate staff did not have their salaries suspended. In fact the Order was roundly ignored by everyone, some political parties even declaring as much publicly (Nezavisne Novine 2007). But the lasting effect was to further damage the government coalition in the eyes of the public as incompetent, and thus steer the subsequent October 2008 election results against the governing coalition. Finally, in May 2008 Gregorian imposed amendments to the Statute that introduced consociational voting in the District Assembly (OHR 2008b). The amendments were not as radical as those found in the state constitution and those of the Entities after the amendments imposed by Ashdown subsequent to the ‘constituent peoples’ decision of the Constitutional Court (see Chapter Seven). They limited national quotas to votes on a specified range of issues, but the description of the issues covered was broad (including budget, language, spatial planning, education and culture) and susceptible to very broad interpretation. They required an affirmative vote by the Assembly to be supported by one-third of the Councillors from each national group who were present at the vote, a mechanism that disincentivised boycotts (to preserve their national interest veto, Councillors would have to attend sessions). But it nonetheless created opportunities for greater blockage, which could be expected to benefit Serb separatist factions who had an agenda to demonstrate the political unsustainability of the District. Many of Gregorian’s failings were not necessarily his fault. From the perspective of the District’s welfare, he was simply the wrong man for the job, chosen by the State Department in the middle of his career and with his next promotion in mind, precisely because he would work faithfully to

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ensure the axe fell on the Brčko project. But ultimately Gregorian should be assessed as the worst Supervisor. His inexperience in matters legal, political and economic rendered him unqualified to do the job. His conflict of interests with his position as PDHR rendered him perpetually compromised. His reaction to new policy initiatives was generally fearful apprehension of the reaction in OHR Sarajevo and the US Embassy. While intelligent and energetic, he quickly showed himself politically inexperienced. There was a reason why previous Supervisors had been figures of great experience and impressiveness. With virtually unlimited powers and colossal influence (a quiet word could be enough to ruin a person’s career or deprive them of their liberty), and no effective accountability mechanism, the job lends itself to the temptation to abuse one’s position, and consequently requires formidable wisdom and judgment. Gregorian simply did not have the experience and temperament to undertake such a colossal responsibility. In his encounters with the international community in Sarajevo, Gregorian developed a reputation for impetuosity and bad temper. He seemed unable to forge consensus with the divergent views of his European colleagues and held personal grudges. Not having had a sufficiently long career in diplomacy, he failed to forge the necessary political consensus. The story of the tribunal proceedings must now be completed, and the termination of those proceedings revealed an extraordinary catalogue of behaviour. Ashdown, although he had officially retired, seemed unable to leave the issue alone. He retained a former colleague to draft an insulting legal brief on behalf of OHR. That brief was filed by the legal department of OHR without the High Representative Schwarz-Schilling, or either the PDHR or the SDHR, approving it. Ashdown was continuing to manage the litigation from beyond the political grave. Gregorian and the State Department then exerted a campaign of pressure behind the scenes, to dissuade Owen from letting the proceedings continue. They misrepresented to the tribunal that the District had agreed to the draft state law on Brčko District (OHR 2007g), an unlikely proposition given that the draft law decided against the District its principal claim before the tribunal. Gregorian then persuaded the High Representative to sign two decisions amending the ITA legislation in April 2007, to give Brčko a better deal (OHR 2007h, OHR 2007i). Under these decisions the District would receive a relatively generous fixed coefficient and its budgetary resources would no longer be at the mercy of an agreement between the Entities. The substance of the District’s complaint to the tribunal was therefore undercut. It would have been open to the District to persist with its complaint before the tribunal: that a solution to the dispute had to be imposed by international intervention illustrated neatly that the other political units within Bosnia and Herzegovina could not be relied upon to protect the District’s interests. However, all the political forces were amassed against

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this course. Gregorian had written to Owen ex parte (i.e. without informing the other parties to the case), telling him that Brčko District had agreed to imposition of the amendments to the High Representative’s decisions and had agreed to settle the claim before the tribunal on that basis. Although neither of these things were true, this move upped the stakes, because it meant that the mayor could effectively continue the proceedings before the tribunal only by calling Gregorian a liar. The mayor was under great pressure from Gregorian, who explicitly threatened to remove him from office if he continued with the claim before the tribunal, to discontinue the proceedings.31 Even short of these extreme courses, he could make life extremely unpleasant for the mayor in all sorts of other ways and had demonstrated his ruthlessness towards others. Therefore the proceedings quietly fizzled away, with the District taking no further action on its complaint and the tribunal dismissing the claim on the strength of Gregorian’s representations that the District had now agreed to the ‘settlement’ imposed by the High Representative.32 However, Owen had a final sting in his tail for OHR Sarajevo. He had been profoundly unimpressed with the behaviour of OHR towards his child, the Brčko District, in the later years. And so while the end of the tribunal proceedings was politically inevitable, Owen decided to make his view known anyway. On 25 June 2007 he issued an ‘addendum to the Final Award’ (OHR 2007s) on his own initiative, dismissing the District’s complaint about the ITA as settled but issuing his own ruling on the transfer of competences controversy. It is worth repeating the most illuminating text of the addendum here: …the Tribunal feels obliged to express an important caveat as to the legal impact of a two-Entity transfer of power to the state without an equivalent transfer by, or the consent of, the Brčko District. The caveat is as follows: So long as the Entities continue to exist under the BiH Constitution, any purported two-Entity transfer to the state, made without an equivalent transfer by, or the consent of, the Brčko District, would be contrary to and illegal under the Final Award if that transfer had the effect of significantly diminishing the District’s ability to function as a single, unitary, multi-ethnic, dem-ocratic government for the Brčko Opština. For example, if the purported transfer resulted in significantly reducing the multi-ethnicity of an existing Brčko institution (for example, the police, the schools, the judiciary), it would violate the Final Award. Owen was trying to fashion a compromise between the parties’ positions on the transfer of competences controversy. IETAs would bind the District without its consent unless they ‘ha[ve] the effect of significantly diminishing the District’s ability to function’. By describing the ruling as an ‘addendum

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to the Final Award’, Owen was trying to give his ruling some degree of entrenched legal effect, to make it harder for the international community or domestic authorities to ignore it. But although it might have been the best Owen could produce given the high political temperature, this attempt would probably not ultimately work. The ambiguous formulation – ‘significantly diminishing the District’s ability to function’ – is susceptible to a multitude of interpretations. Such a flexible legal test will not work in the domestic legal environment of post-war Bosnia, where good faith interpretation of legal instruments does not exist. Domestic institutions outside the District always ignored the Final Award anyway. They would have no time for this addendum. Likewise, the US reaction to the addendum was simply to ignore it. The US embassy, previously responsible for providing translations of tribunal documents, in this case conspicuously failed to prepare a translation and failed to distribute it to the domestic parties. The existence of the addendum surfaced domestically only several weeks later and was roundly ignored by everyone. Nothing further was heard from the tribunal, and Owen’s language was never put to the test. In any event it was probably irrelevant, because there would be no further IETAs without colossal pressure from the international community, which had lost the will to do anything further in Bosnia. The collapse of Supervision In its final years (from mid-2006), the winding-down and closure of OHR in general and Brčko supervision in particular were characterised by bewildering incompetence on the part of the international community. There was the stop-start approach towards closure of the mission: a mere eight months passed between Schwarz-Schilling announcing its closure (June 2006) and conducting a sudden volte-face announcing its extension (February 2007). Right up until January 2007 the decision to extend OHR’s mandate was still not being seriously entertained. In the end, the extension decision was last minute and ill thought through. Rumours about the closure of OHR had circulated from 2005, and repeated extensions of its mandate created directionless leadership and prevented the office from being effective. Because there was a three-year period in which everyone anticipated its imminent closure, domestic politicians started ignoring it, confident that they could unwind whatever it imposed once it had shut its doors for good. Its staff were perpetually on the look-out for new jobs and lost faith in its goals. A succession of High Representatives meant repeated changes in leadership direction and long learning processes as each one arrived. It took about nine months for any new international official to learn enough about Bosnia to be stripped of initial optimism and confidence in the country’s future. Because foreign governments had lost interest in Bosnia, the diplomats in charge of the projects within Bosnia

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became second-rate; the best people were not sent, and those who were had no clear instructions. Anyone who was prepared to do the job was taken, irrespective of qualifications or necessary gravitas. The High Representative sent to replace Schwarz-Schilling, the Slovak diplomat Miroslav Lajčák (July 2007 to March 2009), was the youngest person at 43 ever to hold the post and, while well regarded, had little political backing. His mandate from the EU was to prepare Bosnia for EU accession, but he was trapped between the Scylla and Charybdis of two incompatible constraints. On the one hand, political progress within Bosnia as a unified state was possible only by international imposition; but on the other, the EU advanced a strict policy that all members must undertake the reforms necessary for membership within its fold voluntarily. Thus he was under great pressure not to use his formal powers and, aware of this, the domestic politicians became ever more unruly. By September 2007 the RS was openly threatening to secede if Kosovo became independent. Under Lajčák’s tenure, OHR became ever more rudderless. Despite hortatory papers from influential commentators and NGOs exhorting continued engagement, the international community’s mission in post-war Bosnia had simply run out of steam (Dayton Project 2007). Constitutional amendments relating to Brčko District were eventually enacted in March 2009, but they fell far short of that necessary to secure the District’s future. Achieving little more than recognising its existence, they left the District’s legal status wide open, declining to address the ‘transfer of competences controversy’ and neglecting to provide the District with representation in state institutions. Sensing for some time that the end was near, domestic District politicians had started informally discussing partition of Brčko, and areas of Bosniac, Serb and Croat dominant influence were emerging in different parts of the town. By the beginning of the September 2007 school year, in an ominous indication of the District’s future, schools were starting voluntarily to re-segregate themselves, with only 12 per cent of primary school children attending a school in which the majority ethnic group in that school did not outnumber all other pupils combined by a ratio of 2:1 or more.33 This had been achieved in part by a proliferation of small schools in mono-ethnic villages and in part by the introduction of a policy allowing parents to choose to send their children to any school they wished within the District, leading to self-segregation within the schools in multi-ethnic areas. By mid-2008, local politicians started talking openly of Brčko being absorbed either into the RS or into Tuzla canton (Dnevni List 2008), something unthinkable even a year previously. In the mean time Brčko had become a mere Potemkin village34 for visiting foreign dignitaries, oft cited by international community officials as an exemplar of post-war Bosnian success in stark defiance of the contemporary reality of a rapidly unravelling ball of wool.

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By mid-2007, BFAO had unwound completely. Staff stopped working; many even stopped coming to work. The office dropped into free fall with no direction and no valuable role. Local people still respected the institution, but local officials all but ignored it and were busy fighting out their ethnic vendettas and pursuing their own corruption agendas virtually unchecked. OHR Brčko staff were still drawing their salaries, but they were just waiting for the final axe to fall. This mirrored the picture of OHR in the country as a whole. Ostensibly still pushing police reform as a precondition for Bosnia’s signature of an SAA with the European Union, the mission was achieving nothing and became increasingly irrelevant. An attempt to exercise the Bonn powers in October 2007 to change voting procedures in state executive and legislative institutions caused the Serb prime minister of Bosnia’s central government to resign and paralysed government institutions, leaving Bosnia-watchers with the impression that OHR was now hostage to Serb blockage of its decisions whenever they wished.35 Kosovo unilaterally declared independence from Serbia on 17 February 2008. The United States and several major EU countries recognised it as an independent state, resulting in street violence against foreign diplomatic missions in Banja Luka and RS threats to itself declare independence. At the end of February 2008, fearful that these events might spiral out of control, the PIC announced a reversion to the policy that OHR would remain open indefinitely, until completion of a patchwork list of goals open to flexible interpretation.36 But from that point on, there were very few High Representative’s decisions.37 The only question remaining is when OHR will finally collapse entirely and what will happen afterwards. A subsequent RS declaration of independence, upon closure of OHR, following a renewed confrontation between Serbia and Kosovo, or perhaps just because an RS prime minister at one point gambles that he can get away with it, cannot be ruled out. Russia and Serbia may recognise the RS’s independence. Croats may seize the opportunity to follow suit and declare the independence of Herzeg–Bosna. Bosniacs may be prepared to fight to prevent the RS from seceding. They may try to strangle the western RS by occupying Brčko. This is a depressing scenario, and it may not happen. But it is also quite realistic, and such a potentially catastrophic series of events cannot be ruled out. It is far harder to predict the future than to understand the past. The future of Brčko? At the time of writing, Brčko’s future appears bleak on most scenarios. After termination of Supervision, it seems likely that government corruption will continue virtually unchecked. The inability of Assembly Councillors to enact legislation or appoint people to senior office will hinder effective government. The independence of the judiciary will con-

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tinue to be undermined by resentful executive and legislative branches. The risk of Assembly blockage over national issues has become ever more real through the Supervisor’s introduction of consociational voting in May 2008. The unavailability of a Supervisor to act as mediator between rival national interests may cause deadlock. External political pressures may cause the District once again to become a contested territory between the Entities. Instructions to District politicians from political masters in Sarajevo and Banja Luka to fight national political battles by proxy in the District may make the inter-ethnic compromises essential for the District to thrive impossible. Foreign investments may run dry in the absence of political stability. Without a satisfactory domestic legal and constitutional framework within which Brčko’s relations with the state and Entities are regulated, courts and legislatures elsewhere in Bosnia and Herzegovina may undermine the District’s autonomy and usurp its finances. If the money in the District dries up, the domestic political actors will lose incentives for compromise, and outright political confrontation between ethnic groups may be reignited.38 Virtually no domestic political actor in Brčko believes that the District can significantly outlast the end of Supervision. While pessimism is a characteristic feature of the post-war Bosnian political culture, it is hard to ignore these unanimously pessimistic prognoses. Mirsad Ðapo has said he believes the District will not survive more than six months after Supervision ceases. Brčko exhibits many of the problems of Bosnia and Herzegovina countrywide, but in miniature. Because no national group has any confidence in the continuation of the Dayton state of Bosnia after international community disengagement from the country, no efforts are made to develop the country for the public good. The prediction that the country will tear itself apart after international community disengagement becomes a self-fulfilling prophecy. Public officials are intent only on pursuing selfpromotion in advance of the time when the entire system collapses. Hence corruption abounds and bribes and kickbacks are funnelled abroad. Because no politician has significant inter-ethnic support, there is no incentive for public officials to think more broadly than the narrowly defined interests of one’s own ethnic group, which include inter-ethnic suspicion and hatred and a primitive fear of domination by others. Although within the District, and the state as a whole, there are many genuinely wellmeaning public officials who recall a pre-war period of relative ethnic harmony and make serious efforts to recreate that vision, their attitude does not predominate and the entire country has suffered from a severe brain drain. One feature of Brčko that renders its survival as an independent multiethnic unit within Bosnia and Herzegovina particularly precarious is the local nature of its politics and officials. Brčko is a provincial town, and the District is (in geographical terms) predominantly rural. Provincial men-

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talities predominate and the most capable people have left for elsewhere in Bosnia or abroad. Post-war standards of education in Bosnia and Herzegovina are poor, and well-educated people within Brčko are relatively uncommon. The concentrated international community presence in Brčko compensated for the intellectual deficit from which the town would otherwise suffer. International officials brought vision and imag-ination to Brčko that cannot generally be found amongst local politicians and community leaders. Upon the international community’s final with-drawal there will be an intellectual vacuum, as there are too few capable people remaining amongst the domestic actors to have custody of the Brčko project. The District’s best hope for a successful future is the possibility that it can fit into a newly agreed constitutional order for Bosnia and Herzegovina, as a local region or a federal unit. It must therefore survive in its current legal limbo and politically unstable form until such time as national politicians representing all three ethnic groups may reach a ‘post-Dayton’ deal on the constitutional future of the country. It is far from certain that Brčko can survive that long without a Supervisor. If the District remains wealthy, and local political compromises can continue to be ironed out between domestic politicians, it is conceivable. But it is hard to foresee such a rosy scenario when it is unrealistic to anticipate it elsewhere in the country. At the time of writing, the next elections are scheduled for October 2008. Should a new coalition give primacy of place to nationalist politicians, the risk of political meltdown seems more likely. State institutions comprise a coalition of nationalist parties with no common points on their political agendas, and are notoriously dysfunctional as a result; without continuing intense international scrutiny, it is hard not to see District institutions going the same way. One must also hope that Brčko remains low priority for the state and the Entities, so that for the time being they leave it alone. In that case, local politicians might continue compromising with one another in a rough and ready pragmatic way. But if one or another national political leader decides that fomenting unrest in Brčko is in his own political interests, and directs the local Brčko politicians under his influence to create friction, Brčko could quickly collapse irrespective of the levels of competence and pragmatism otherwise exhibited by local politicians when unsupervised. Any move by senior RS politicians to push for RS independence would probably create renewed armed conflict in Brčko, as it once again becomes the essential land bridge required to provide the RS with territorial integrity. For the same reason, attempts by Bosniacs at the gradual domination of District institutions, observed since the October 2004 elections brought a Bosniac mayor to power, are likely to continue and without doubt will continue to stir paranoia in Serb residents.

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The tragedy for Brčko and its people is that after such a promising beginning, the current state of chaos and uncertainty over the future was not necessary. Had the international community been more united in its support for the Brčko project, and had its commitment to Brčko been longer-term, the successes in Brčko could have been properly consolidated. Brčko was, and remains, the geographical lynchpin that prevents Bosnia and Herzegovina from breaking apart. Like OHR itself, supervision has always been a relatively low-cost exercise by the standards of international organisations. In early 2007, OHR as a whole was estimated to cost slightly more than 1 million Euros a month. Perhaps one quarter of that can be attributed to the costs of continuing the office in Brčko. In earlier years Supervision cost considerably more, as the US government provided the Supervisor with an annual budget in the order of millions of dollars to pursue development and political reforms. But by the standards of the Iraq war, at the time of writing estimated as costing the US taxpayer $1 billion dollars per day, the costs of international intervention in Bosnia are trivial. There seems no good policy reason to end supervision any time soon, faced with the risk that all the money invested in the District so far will be wasted as reforms are reversed, and given the strategic importance of Brčko in any future violent conflict in Bosnia and Herzegovina (a possibility that unfortunately cannot be ruled out). Unfortunately the reasons for terminating Supervision are essentially bad ones: an unreasoned desire by the US to disengage from Bosnia and Herzegovina, a wish to ease diplomatic confrontations between OHR Brčko and OHR Sarajevo and a vaguelyexpressed, but in the short term unrealistic, desire by the EU to see Bosnia and Herzegovina as a normal democracy in which powers of international guardianship have no place. Underlying this pessimism is a truth about the Dayton Constitution that is glaringly obvious to the outside observer, but which the zeal of the Ashdown-era reforms temporarily obscured. The Constitution agreed by the parties to the DPA was a blueprint for subsequent secession of the RS from Bosnia and Herzegovina and the fracture of the country into two or three independent mini-states. Had it been otherwise, the Bosnian Serbs would never have agreed to it. The Dayton state has been held together only by the coercive and unaccountable powers of the High Representative and the Supervisor. Once those powers have gone, it seems unrealistic to hope that the state can stay as a whole when the political structure has been designed to create the opposite result. A relatively moderate RS prime minister in Banja Luka may delay the inevitable only for a while. Whether the trigger be further unrest in Kosovo, conflict between rival militias in Mostar or a demonstration ending in police brutality, there is trouble on the horizon. The pessimistic speculation is that sooner or later popular will and the political logic of the Bosnian constitution will prevail. If that happens, Brčko will be torn apart in the process.

9 WHAT HAVE WE LEARNED?

In this concluding chapter of this book, an attempt is made to distil the principal lessons from the Brčko project. Like OHR in Bosnia as a whole, the experience of international arbitration and supervision in Brčko offers a plethora of fascinating insights for those engaged in the study of international management of post-conflict countries. The main lesson is that international arbitration and supervision has the potential to be an extremely successful model. It has achieved extraordinary results. It is a modern reincarnation of a previously discarded model of internationalising disputed territory. Under this model, a contested region is removed from the exclusive control of any of its contestants and placed under international administration. The Cold War foreclosed the level of international cooperation necessary to make such approaches work, and the attempts to internationalise territory in the immediate aftermath of the World War II failed (see Chapter Five). Until Brčko, there were no further attempts. But now the Cold War is over, the re-emergence of a degree of international consensus and cooperation between the Great Powers makes internationalisation of disputed territories more viable. Brčko is the first in the new era: it has been a qualified success and there may well be others that follow. Mostar To understand just how much the Brčko District model has achieved, it is worth making the briefest comparison with Mostar, the other ‘divided city’ in post-war Bosnia. Mostar, a city in Herzegovina, the south west part of the country, with a pre-war population of approximately 120,000, was a beautiful town with an economy based upon tourism and light industry. The population being roughly evenly divided between Bosniacs and Croats with a Serb minority, it suffered devastation when the Croats decided they needed to achieve dominance of Mostar for it to become the capital of their Croat mini-state of Herzeg–Bosna. Accordingly they placed the Bosniac areas of town under military siege. The extent of the damage to buildings

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was similar to that in Brčko, although the levels of atrocities, civilian deaths and war crimes were nowhere near as high. After the armistice between the Bosniacs and the Croats recorded in the Washington agreement (see Chapter Two), the city saw peace but was completely divided between Bosniac East Mostar and Croat West Mostar. Since then, despite a slew of OHR initiatives, dismissals and impositions, it has been impossible to reunite the city in any meaningful way, or establish a functional multi-ethnic administration. The city remains divided 13 years after the war ended in Mostar, much war damage has not been repaired, the economy is stunted and the prospects for its future are poor. Far less has been achieved with greater resources and from a higher starting point in a town with far greater natural assets. By contrast, Brčko District became a jewel of post-conflict reintegration, with the economy thriving (by Bosnian standards), the population reintegrated and with roughly functional multi-ethnic public institutions. (Most public institutions in post-war Bosnia cannot even be described in these modest terms.) The principal differences between Brčko and Mostar are the intensive engagement possible due to the presence of an international Supervisor, and an effective resolution of the territory’s disputed status imposed by international arbitration. The general consensus is that in Mostar the international community did too little, too late. From 1994 to 1996 an EU administration theoretically governed the city with executive legal authority similar to the Brčko Supervisor. But in practice the regime faltered without adequate military backing. The EU administrator for Mostar, Hans Koschnik, (who in theory had executive authorities similar to those of the Brčko Supervisor) was run out of town by the Croats. A rocket-propelled grenade was put through his apartment window, his car was stoned and the Croat leaders declared him persona non grata, refusing to deal with him. OHR imposed an interim Statute upon Mostar in 1996 that formalised a consociational power-sharing mechanism. Unlike the Brčko Statute, it explicitly recognised the different ethnic groups, guaranteed certain positions to persons from different groups and required that certain types of decision could only be made with the consent of representatives from more than one ethnic group. The Statute divided the city into six municipalities plus a central zone (including the tourist district in the old town). The six municipalities were in practice mono-ethnic (three Bosniac, three Croat) but the Statute imposed ethnic quotas for local councils in each municipality on the basis of the 1991 census, with the intention of ensuring that no single ethnic group would dominate in any municipality. The scheme was easily subverted as both Bosniac and Croat political parties placed loyal Serb candidates on their party lists to capture seats reserved for Serbs (the displaced Serb pre-war population has not returned to Mostar to any significant degree) and therefore obtained majorities reflecting the contemporary ethnic divisions. A central city government had minimal competences, save over the central

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zone. The mayor and deputy mayor had to be from different ethnic groups, but each official would govern ‘their’ part of the city through parallel institutions with separate budgets. There is virtually no effective government in the tourist-heavy central zone, which is a police no-go area and where there is no tax collection. (That area is run by family gangs, who extort ‘protection money’ from the tourist businesses and enforce peace with bands of thugs.) Ethnic cleansing of Bosniacs from West Mostar continued even after the Washington agreement. In practice the two communities remain completely divided and cooperation between them is minimal. As in Brčko, ethnic symbols have been used to mark territory, the Croats constructing a huge cross on the hill above town on the western side and an enormous cathedral spire out of crude concrete. Both these symbols are visible for miles around. Even in 2007, the local political parties had stand-by militia units ready to reoccupy the old front line in the event of a renewal of hostilities. After Koschnik’s departure, nothing effective was done to reunify Mostar until Ashdown’s arrival as High Representative, by which time the ethnic divisions in the town had been irreversibly cemented. Ashdown imposed a new Statute for the City of Mostar (OHR 2004c), upon the recommendation of a Commission for Mostar which he had established in an attempt to unify the city’s administration. The new Statute represented a move away from the rigid consociationalism of the 1996 Statute. It replaced the six municipalities with a single municipal area, but maintained supermajorities, and national interest veto rights, and continued the principle that certain senior offices must be held by officials from different ethnic groups. However, there was no international enforcement mechanism and by that point it was anyway too late. While the formal power-sharing mechanisms were amended, the informal parallel institutions remain in place and the central zone remains in the exclusive control of armed gangs. Ashdown’s new Statute did not change the way Mostar is actually administered, and was simply ignored by local parties because he was not prepared to devote adequate local resources and legal powers and independence to OHR Mostar. Mostar remains poor and divided, with two separate communities with little formal or informal interaction. Schwarz-Schilling subsequently appointed a ‘special envoy’ to Mostar, Norbert Winterstein. Upon his appointment in September 2006, it was said announced that his mandate would be for a period of not more than three months.1 Winterstein’s instructions were to make the unified Mostar city government ostensibly set up under the Ashdown Statute work effectively, but in practice he achieved almost nothing because he had no legal powers and the period of his appointment was pitifully short: the belligerent Mostar politicians just had to wait until he left. In August 2009, a Mostar city government had still not been formed after October 2008 elections, notwithstanding continuing OHR threats and sanctions. A cynical observer might speculate that the

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people of Mostar are just biding their time until the next armed conflict in the aftermath of OHR’s departure. The Croats’ purpose in forming parallel institutions in Mostar is surely to prepare for separation and pursuit of the Herzeg–Bosna project with West Mostar as their capital. Thus in Mostar another Bosnian crisis is waiting to explode. If there is another war, that is where it will start. Brčko could have been the same, but it is not. Internationalisation has achieved significant results; leaving a contested territory to intransigent domestic actors, in the hope that they will somehow hammer out a compromise, does not work. If the parties could not cooperate before a war then the thought, captured in the international community’s approach to Mostar, that they will somehow find a way after a war, seems a little preposterous. The efforts involved in establishing an internationalised territory are significant in political and military terms, and Mostar shows that it cannot be undertaken half-heartedly or in a piecemeal fashion. But with commitment and competent execution, it can be effective. The comparison between Brčko and Mostar shows just how much of a difference it can make. International arbitration International arbitration is an intriguing idea to resolve disputes over contested territories. It has a great deal to commend it. Although any decision of an arbitral tribunal will inevitably be heavily influenced by political considerations, introducing a sense of external judicial temperament and restraint into a decision about control of territory may be useful where political passions are so intense that no negotiated solution can be achieved. Although it will not always be entirely clear what laws a tribunal will apply in resolving such a dispute, there is a relevant corpus of international legal and policy principles that one may expect to be brought to bear. Moreover, international arbitration is a slow and methodical process. Due process, public hearings and reasoned rulings are more likely to be perceived as fair by the disputing parties and their citizens than backroom secretive political deals. The delay engendered by the use of arbitration may also be valuable in reducing the political temperature of a dispute. The open discussion of the dispute may lead, in time, to a partial reconciliation of the conflicting parties and a greater mutual understanding of their positions. Establishing an arbitration tribunal is no easy task. The anecdotal evidence from Dayton seems to be that, seeing no alternative, the parties were pushed into accepting a legal process the consequences of which they did not at the time understand and nobody could predict. Arbitration is based upon consent of the parties to the process; for public international law arbitration between sovereign states, this principle is enshrined in Article 52 of the 1907 Hague Convention on the Pacific Settlement of

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International Disputes, which anticipates that the parties to a dispute who are states will sign a compromis, detailing the scope and procedures of the arbitration. It may not be easy in the future to achieve such an agreement. But it need not be impossible, particularly in the face of a brutal conflict that all parties are keen to end but where no agreement can be reached on how to do so. Agreement to arbitration can be presented by both parties as a political success in which violent conflict is subverted to an impartial legal process in which truth and justice will prevail. Alternatively arbitration might be imposed by a resolution of the UN Security Council. There are two ‘chapters’ of the United Nations Charter under which the Security Council may adopt resolutions. Chapter VI is entitled ‘Pacific Settlement of Disputes’, and within Chapter VI Article 33(2) provides that the UN Security Council may ‘call upon the parties to settle [a] dispute by [arbitration or judicial settlement]’. But it is widely thought by commentators that Chapter VI resolutions are not legally binding, being only hortatory in effect.2 In contrast, Chapter VII is entitled ‘Action with respect to threats to the peace, breaches of the peace and acts of aggression’, and there is no doubt that resolutions of the UN Security Council made under Chapter VII are binding. There seems no reason why the Security Council could not order the parties to submit a dispute to binding arbitration pursuant to Chapter VII, where there is a threat to peace. In one case (UN 1991b) the Security Council did just that, establishing a boundary commission to demarcate the boundary between Iraq and Kuwait after the first Gulf War. The report of the commission was subsequently adopted by the Council on 27 May 1993 (Klabbers 1994; Mendelson and Hutton 1993). The pretext for the first Gulf War had been an allegation of a boundary dispute by Iraq. In the aftermath of the war, with the Iraqi army routed and vast numbers of foreign troops in Kuwait, Iraq was hardly in a position to complain about the arbitration process to which it was involuntarily subjected. Choice of arbitrators is extremely challenging and in the Brčko case bedevilled the tribunal from the first day. Had one or both party-appointed arbitrators refused to participate in the Brčko proceedings, the tribunal would have been stymied amid accusations of illegitimacy and incompleteness. Either Entity could have purported to withdraw its arbitrator at any time and it was frankly a miracle that this did not happen. The arbitrators may have to be well paid, to give them an incentive for continuing participation. Alternatively, as has happened in many other international public law arbitrations, the party-appointed arbitrators may be required to be neither a citizen nor a resident of either disputing state, removing the risk of a highly polarised tribunal. It seems that only drafting errors can explain the absence of such a provision in the Brčko arbitration clause. Instead, the threat that the Presiding Arbitrator would issue decisions unilaterally seems to have kept the Brčko Tribunal functioning. However, it was a close thing, as the RS seems to have harboured severe

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doubts over whether Owen really was politically neutral. Presumably the parties thought that there was little to gain from withdrawing their arbitrator where the Presiding Arbitrator made it clear he would issue a ruling regardless. However, that threat might not have been necessary had greater efforts been made to ensure the neutrality of the party-appointed arbitrators. The criticism has been made that by departing so radically from conventional arbitration procedures, the Brčko arbitration may deter parties in future from using arbitration as a tool for resolution of territorial disputes (Copeland 1999). But it is hard to see this criticism as well placed. Most parties recognise that the facts in the Brčko case were sufficiently unique to warrant a highly unusual series of rulings. Although they profess not to be happy with it, most domestic political actors in Bosnia and Herzegovina now privately acknowledge that it was the best result that could be reached in the circumstances, at least for the short-term. (As noted in Chapter Eight, the longer-term status of Brčko remains open to serious question.) Many even accept that Owen’s award displays a sublime wisdom and originality, rare in those who practice the dry arts of the legal profession. Brčko has a sufficient reputation for success that this experiment may be repeated. Indeed it has already been considered for at least two other divided towns, Kosovo Mitrovica in northern Kosovo and Kirkuk in Iraq.3 There have been at least two instances of international arbitration being used to resolve a disputed territory issue since the DPA, both attempts to defuse prolonged and intractable disputes with violent histories and ethnic components in sub-Saharan Africa. Arbitration was used to resolve a territorial dispute that had generated armed conflict between Ethiopia and Eritrea between 1998 and 2000. In the peace treaty signed by the two countries on 12 December 2000,4 it was agreed to establish the ‘Eritrea– Ethiopia Boundary Commission’, a tribunal of five arbitrators under the auspices of the Permanent Court of Arbitration in the Hague. Their mandate was to ‘delimit and demarcate the colonial treaty border [between the two countries] based on pertinent colonial treaties…and applicable international law’ and the panel’s decision would be ‘final and binding’. The arbitration clause was far more detailed than in the Brčko case and great care seems to have been taken in devising and negotiating its terms. A final decision was pronounced in this territorial arbitration on 13 April 2002 (UN 2002). The tribunal’s enquiry focused for the most part on the extent to which subsequent conduct by the parties had varied the boundaries established under a series of historical treaties. Being principally a factual rather than a political enquiry raising taxing and controversial principles of international law, this arbitration was closer to the mould of the Rann of Kutch and Taba arbitrations (referred to in Chapter Two) than the Brčko arbitration. Its decision was not initially accepted by Ethiopia, as it awarded the principal disputed town of Badme to Eritrea, which Ethiopia continues

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to administer nonetheless. A UN force occupied the border zone separating the sides. There were signs of improvement in the situation when, in November 2004, Ethiopia’s parliament voted to accept the Commission’s ruling, in a remarkable volte-face by the Ethiopian government. The arbitration succeeded in achieving an indefinite cessation in hostilities, although at the time of writing the area remains unstable: frustrated with Ethiopia’s failure to transfer control over Badme, Eritrea cut off UN forces’ electricity supplies in December 2007 and there has been a build-up of troops along both sides of the border. The second instance of post-Brčko territorial arbitration has so far been of similarly mixed practical success, due to the failure of the UN to take serious enforcement action. The Abyei Annex to the Comprehensive Peace Agreement for Sudan (CPA), dated 9 January 2005, established an international arbitration tribunal (called the Abyei Boundaries Commission, or ‘ABC’) to resolve a boundary dispute, namely ‘to define and demarcate the Area of the nine Ndok Dinka Chiefdoms transferred to Kordofan in 1905’. The territory so demarcated would become the territory of the semiautonomous ‘Abyei area’, which would be entitled in 2011 to hold a referendum on whether to join the north or the south of the country, at the same time as the south holds a referendum on independence. Under the CPA, the ABC’s decision is described as ‘final and binding’. Chaired by a former US ambassador to Sudan, the ABC issued its decision on 15 July 2005 (USIP 2005). The territory granted to the semi-autonomous Abyei area by the ABC was larger than the Khartoum government (of the north) had advocated; it publicly rejected the decision and continued to attempt to administer the territory as part of a neighbouring province (ICG 2006). The United Nations Mission in Sudan, supported by 10,000 UN troops, declined to create its own interim administration to implement the decision. Its presence kept things relatively stable for a while, but renewed violence has occurred intermittently since December 2007. Then in a remarkable political compromise, the parties agreed to establish a new, appellate tribunal, which reviewed the first decision and in July 2009 redrew the boundary partially in the north’s fabour. Whether the CPA as a whole, or the ABC’s decision, will prove sustainable in the long-term remains an open question. At the time of writing, international attention in Sudan has been diverted from relations between north and south to the crisis in Darfur in the west of the country. The legal structure of supervision International supervision of disputed territory can be extremely useful, and Owen’s idea of imposing this as an initial step in the arbitration process probably made the single biggest difference to its outcome and to Brčko’s relative success. The most significant problem for any international legal

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process is its enforcement, particularly where recent armed conflict demonstrates the self-harm which states will endure to pursue their territorial claims. But the success of an enforcement mechanism such as supervision depends on a number of factors. First, the essence of supervision is intense international control over the development of political institutions and economic development in the territory. To achieve this, the Supervisor will need significant resources, both financial and human, to exercise the close level of scrutiny necessary. Second, in an immediate post-conflict situation, the Supervisor may need loyal military forces to enforce his will against recalcitrant domestic political actors who can mobilise the local population. Third, the Supervisor requires formidable legal powers. As the High Representative discovered before being bestowed with the Bonn powers, domestic officials are unlikely to extend to an international official any consideration greater than mere courtesy unless he can punish them and annul their decisions. (In Mostar, even courtesy seemed to be out of the question for poor Mr Koschnik.) Fourth, recruitment of capable Supervisors and staff can be difficult. There needs to be a long-term plan for continuation of the chain of Supervisors. It may be relatively easy to recruit the first Supervisor, but there must be a commitment to attract and retain subsequent Supervisors too. If there is a constant political message that the position is to be terminated, enthusiasm for the position amongst subsequent appointees may be difficult to instil. Fifth, the Supervisor needs a source of consistent political support for his or her endeavours. With a legal mandate established by a tribunal, the Supervisor will necessarily maintain a degree of independence from the political interests of any particular foreign government. This may draw the Supervisor into conflict with other endeavours by the international community. These conflicts need to be carefully managed by the supporting government, lest they spin out of control. Dictatorship by the Supervisor was a remarkably good fit with the previous communist model of government prevailing in the former Yugoslavia. Communism, involving a pyramidal government structure in which orders from higher up the pyramid fell to be executed unquestioningly at the lower levels, did not have a significant tradition of political compromise. Local assemblies were rubber stamps for policies and legislation devised higher up in the communist bureaucracy. Where two local authorities were irreconcilably opposed, the resolution would not be negotiated at the local level but imposed from above. So it was with the domestic authorities and the Supervisor. Where representatives of the three ethnic groups could not agree, the issue would be referred to the Supervisor who would decide it and expect obedience. The effectiveness of supervision therefore to some degree relied upon the pre-existence of a dictatorial political culture. Correspondingly, the presence of the institute-ions of supervision hindered the process of domestic politicians learning the art

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of political compromise, essential in a democracy but lacking in the previous system. To what extent this model would work in other societies is not clear, but the broader lesson is that any regime of international government of a territory must be a reasonable political and cultural fit with the pre-existing domestic institutions. One of the severest criticisms of any regime of international supervision of disputed territory is its lack of accountability. If a Supervisor or a High Representative has the power unilaterally to change the law or constitutional documents, or to appoint and dismiss officials, that power must be checked. It is in the very nature of international intervention, whether it be in nineteenth-century colonies, twentieth-century League of Nations mandates or twenty-first-century UN intervention, that enormous powers are concentrated in the hands of a single person or institution, powers that would usually be distributed thinly between many. The Brčko Supervisor has at different times been expected to operate as a legislative, executive and judicial authority. When he or she changes the law, he or she acts as a legislator. When ordering officials to conduct themselves in certain ways, and making appointments, he or she acts as a president, as an executive officer. When dismissing officials or penalising them for wrongdoing, the Supervisor acts in a judicial capacity. The Supervisor has in general been surrounded by capable advisers, from which one may hope for wise decisions to emerge. But this seems to be in large part good fortune, as well as the product of the good judgment of the individuals appointed to the office of the Supervisor. The advisers to the High Representative have been in general (albeit with significant exceptions) of lower quality. Some bad, and unfair, decisions have been enacted both by Supervisors and by High Representatives. Public review of decisions will improve their quality, as the drafters and decision-makers anticipate subsequent judicial scrutiny. There must be a mechanism by which unwise decisions can be overturned. People who suffer as a result of international intervention must be allowed due process. Human rights must be respected, particularly the right under Article 6 of the European Convention on Human Rights for a person to receive a fair and impartial hearing in the determination of his legal rights and obligations. Bosnia and Herzegovina has one of the worst records in Europe for observing human rights. But many of the human rights violations have been committed by international officials. It is difficult for the international community to lecture domestic actors on the importance of international human rights obligations when international officials pay scant regard to them. As Alija Izetbegović, Bosniac President during the war and member of the state Presidency after the war until 2000, complained bitterly (Dnevni Avaz 1999): ‘They remove a man, label him dishonest, do not present any proof of this, and then talk to us about human rights…They want us to take their word for it.’

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These concerns are arguably less compelling in the immediate aftermath of war, during which it is arguably more important to have a strong and unassailable authority than that poor decisions be reviewed. But international intervention is manifestly a very long-term process. As time goes on and the immediate threats of armed conflict recede, the case for a system of review of international decisions will increase. It may be appropriate for international legal instruments in the nature of decisions of the High Representative or orders of the Brčko Supervisor to become susceptible to review after, say, two years from inception of the international legal regime pursuant to which they are made. The early days of Supervision were politically very difficult, and arguably might have been made far more so had the domestic authorities had an opportunity to challenge orders of the Supervisor. But it is far harder to argue for the notion that the Supervisor’s powers should be legally unaccountable once the District had been established in March 2000. A regime in which acts of an international legal nature are subject to judicial review would be unusual. Most international legal acts do not have that quality. Resolutions of the UN Security Council and General Assembly cannot in practice be reviewed for their legality.5 Domestic courts would not be appropriate venues for review, as the international official may have oversight over the judiciary, as indeed do both the Brčko Supervisor and the High Representative. Foxes cannot guard the chicken coup. Moreover, one of the reasons an international legal intervention regime is necessary is because of the poor standards and partiality of domestic courts in a postconflict divided society. Quality of justice is usually severely lacking and political influence over judicial decision-making is often significant. If international legal instruments are to have any credibility, they cannot be subject to review under such conditions. Therefore any review mechanism must be international in character. There are precedents for political review of decision-making in internationalised territories, but few precedents for a specifically legal or judicial review. The League of Nations charter provided for territories to be placed under ‘mandates’ of powers occupying them.6 The purposes for which the so-called ‘mandating power’ exercised her prerogatives were supposed to be selfless – development of the territory to the point that it could function without being under mandate – although in practice mandates were for the most part glorified colonies. However, the League of Nations did establish a ‘Permanent Mandates Commission’ to review annual reports of the mandating powers, and also provided that mandated peoples had a right to petition the League of Nations to complain about the actions of the mandating powers. The system was imperfect, as the supervising power was supposed to forward those petitions to the League of Nations (LON 1923), but might of course fail to do so. It is unrealistic to expect a criminal to deliver his own charge sheet to the pro-

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secutor. In practice there were very few such petitions and none resulted in remedial action imposed by the League. There is one precedent for a more thoroughgoing international judicial review of orders of an international civil servant. The High Commissioner of the Free City of Danzig was a position established under the Peace Treaty of Versailles that concluded World War I. The High Commissioner has been cited as a direct antecedent of the institution of the Brčko Supervisor7 and it is perhaps the only such precedent. The ‘Free City of Danzig’, referred to in Chapter Five, was an internationalised territory subject to League of Nations supervision between the two World Wars. The Versailles treaty provided that Poland would be independent of Germany, albeit that the predominantly ethnically German city of Danzig, Poland’s principal port and surrounded in its entirety on land by Polish territory, would be an independent city-state. Appointed by the League of Nations, the High Commissioner, like the Brčko Supervisor, exercised general powers of supervision over the territory. The Free City’s constitution had to be approved by him;8 in practice any amendments to it would also require his consent, as they had to be approved by the Council of the League of Nations.9 The Council would be unlikely to approve a proposed amendment that the High Commissioner disagreed with. The High Commissioner could also issue decisions resolving ‘differences arising between Poland and the Free City in regard to’ all agreements establishing the Free City (of which there were two more beyond the Versailles Treaty).10 But his role was passive, in that for the High Commissioner to issue a ruling, the dispute must be ‘submitted by one or the other Party’11 (i.e. Poland or Danzig.) In practice this meant that decisions of the High Commissioner could, at the request of either side, provide binding interpretations of the international treaties establishing the Free City, rule on questions of domestic and international law affecting the Free City’s status (e.g. PCIJ 1928) and declare laws of the Free City inconsistent with its constitution (PCIJ 1935). The High Commissioner did not have to rule on such a request; he could, ‘if he deems it necessary, refer the matter to the Council of the League of Nations’.12 Although the various High Commissioners’ usual practice was to decide matters themselves on which they were asked for a decision, in at least three prominent cases the High Commissioner refrained from issuing a ruling, believing that due to their legal nature the issues were better resolved by a court (PCIJ 1930; PCIJ 1932; PCIJ 1935). If the High Commissioner did make a decision, it would be a ‘first instance’13 decision only and the parties would ‘retain the right of appeal to the Council of the League of Nations’.14 Out of 66 disputes submitted to the High Commissioner, 54 were appealed to the Council (Ydit 1961). Like the UN Security Council, the Council of the League of Nations was essentially a political rather than a judicial body. However, the practice emerged that

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where a case was referred to the Council, either by the High Commissioner when he declined to assume first instance jurisdiction, or upon appeal by a party dissatisfied with the High Commissioner’s decision, and the issue had a controversial legal character, the Council would seek an advisory opinion on the question from the Permanent Court of International Justice (PCIJ), the international Court established under the League of Nations charter, and would follow it. In this way a mechanism for judicial review of the High Commissioner’s decisions was established. But this full appellate mechanism was invoked only relatively rarely. In the lifetime of the Free City of Danzig (1921 to 1939), there were only five Danzig issues referred by the Council to the PCIJ. Of these, in only two cases had there been a previous decision of the High Commissioner which was being appealed (PCIJ 1925 and PCIJ 1928); in the other three the High Commissioner had declined to issue a ruling. Of the two decisions being appealed, in one case the High Commissioner’s decision was upheld (PCIJ 1925) and in one it was overturned (PCIJ 1928). Of the remaining 49 cases decided by the Council of the League of Nations without a reference to the PCIJ, the High Commissioner’s decision was not once overturned.15 The paucity of High Commissioners’ decisions that were subject to review by the PCIJ, and the very low rate of reversal of those decisions by either the Council of the PCIJ (one in 54), suggest the existence of serious structural flaws in the process. It may have been that the process was far too slow to work in all but the most extreme cases. The Council of the League of Nations might have referred a greater proportion of cases to a judicial process if they had available something faster and less cumbersome than the PCIJ, whose procedure was very slow, sometimes taking years. Had, for example, the Council access to a committee of legal experts who would issue decisions promptly after hearing the parties’ submissions in an expedited procedure, the mechanism might have worked more effectively. There are some important disanalogies between the position of the High Commissioner for Danzig and either the Supervisor or the High Representative. First, the powers of the High Commissioner were considerably more limited than his Bosnian counterparts. His passive role, limited to responding to requests from the disputants, precluded the sort of incessant activism found amongst Brčko Supervisors. The High Commissioner acted as a mediator between parties that otherwise found it difficult to agree, in the same way as the Supervisor. But the effectiveness of his mediation was undermined by his lack of powers of imposition and removal, and the absence of adequate military support. Thus once the Nazi party came to power in Danzig’s 1933 elections, successive High Commissioners were sidelined and had little power to prevent the encroachment of nefarious Nazi policies. When the German army invaded Poland in 1939, the High Commissioner was given two hours to leave.16

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Second, the powers the High Commissioner did have were essentially of a legalistic nature, interpreting legal documents and resolving constitutional disputes, rather than being purely political. Third, his role was a more passive one. On paper, at least, the High Commissioner just waited for parties to refer a dispute to him, although it seems that in practice he was fairly interventionist, frequently adopting a role as a mediator and lobbyist. The PCIJ confirmed that his decisions could not resolve issues that had not been referred to him (PCIJ 1925). The High Commissioner adopted a quasi-judicial procedure, inviting parties to submit sequential written memoranda on legal and factual issues of dispute (see e.g. PCIJ 1932). Successive Supervisors and High Representatives have never done that, frequently issuing their decisions as ‘surprise’ measures without any prior notice to the affected parties. It might be considerably more difficult for a modern international court, such as the International Court of Justice (the ICJ, the Court established under the United Nations charter) to review decisions of Bosnia’s High Representative or the Brčko Supervisor, because the powers are much broader, they are exercised more politically and they are less legalistic in their modus operandi. There is no clear procedure that these international officials should adopt prior to issuing their decisions and with which a court could assess their compliance. It is therefore difficult for a court to establish a precise legal standard against which to measure the exercise of such powers. Moreover, only states may be parties to a dispute before the ICJ, and appeals from decisions of an international official are not likely to be in the character of a dispute between two states. Were the ICJ to act as an appellate court from an official in the nature of a Supervisor or a High Representative, it would have to do so relying upon its ‘advisory’ jurisdiction, which requires a reference from a body (such as the UN Security Council) that has standing to seek advisory opinions from the Court. Relying upon advisory jurisdiction is structurally unsatisfactory, because the referring body might refuse to make the reference to the ICJ, or might refuse to follow the opinion once issued. (These flaws existed for the PCIJ.) Moreover the ICJ, like its predecessor the PCIJ, is notoriously slow; its cumbersome 15-judge structure does not make for a court appropriate to speedy deliberations upon appeals where time may be a critical factor. (Once a decision subject to appeal has been implemented, it may become a fait accompli and the appeal moot.) A system of appeals from international officials to the ICJ might be unsuccessful for the same reasons that the appeals system from the Danzig High Commissioner to the PCIJ did not work well. Therefore if there is to be a system of international judicial review or appeals from decisions of international officials, it must be carefully crafted. First, a special international tribunal may need to be created and funded. Careful attention must be given to its composition. In the murky world of

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international relations and diplomacy, in which important decisions are generally stitched up behind closed doors, achieving the independence and transparency of a review body would be a particularly demanding task. In the Brčko case, the obvious venue for appeals from orders of the Supervisor would have been the Brčko arbitral tribunal itself. It is surprising that this never happened; instead Owen seemingly preferred to give the Supervisor unchecked power, perhaps because he knew he had neither the resources nor the international community support to undertake a fullblooded appellate function. The categories of dispute upon which the appellate court will adjudicate must be clearly defined. The legal grounds upon which it may overturn a decision must be made clear, particularly where decisions are likely to have a significant legal element. Decisions depriving individuals of substantive legal rights are ripe for review; decisions of a more purely political nature may not be susceptible to appeal. The standard of review will be important and may be different for different kinds of decision. In many cases the usual administrative law standards may be sufficient: a decision must be reasonable, proportionate, not in excess of powers and issued for an appropriate purpose. In decisions affecting individuals’ fundamental human rights, a more exacting legal standard may be appropriate. A mechanism for dealing with the interim period between appeal and final disposal is needed. (The usual rule must surely be that the decision remains in force pending the outcome of the appeal process, but there may be exceptional circumstances in which that rule should be disapplied.) In the immediate aftermath of conflict, it may be appropriate to have a lead-in time before decisions can be reviewed: for example, a two-year grace period in which the orders of an international official are not subject to review. The risk of appeals may undermine the authority of an international official where the risk of renewed armed conflict is high. But if a system of international supervision is to last indefinitely (over ten years for each of the High Representative and the Brčko Supervisor), that legal unaccountability must have a time limit. There is significantly more novel legal work to be undertaken if a transparent and accountable system of international supervision is to be established in the future. Such a system would be considerably more expensive for the international community, as it would require resources devoted to managing and contesting appeals. But this may be a necessary incident to improving the quality and fairness of international intervention in countries and promoting international human rights standards; and, compared to the costs of military intervention, lawyers’ fees pale. Appendix 1, at the end of this chapter, sets out a proforma for a legal regime to review the orders of an international official such as a Supervisor. It would need to be adapted to fit any individual case. But the elements of it are common to all regimes of international civilian intervention: a clear statement of powers, a transparent appeal procedure in

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which due process is observed and a degree of flexibility sufficient to deal with the evolving political realities within which the international official is bound. There is an important point about the breadth and unaccountability of the Supervisor’s powers that impacts upon the nature of any review procedure. Because Supervisory Orders could be in virtually any form,17 could have virtually any content and were for legal purposes effectively unassailable,18 they acquired a magical authority. After 1999, they were unquestioningly obeyed by domestic authorities, irrespective of their content or wisdom. Initially this was because of the presence of US troops to enforce the Supervisor’s will; but even after US troops departed in March 2004, there was rarely a question of Supervisory Orders being disobeyed. In part this was due to an acknowledgment that, for the most part, the Supervisors chosen for the position had exercised their powers with wisdom, judgment, impartiality and restraint, and therefore their orders were worth obeying. In part it was due to the submissive political culture prevailing in Bosnia, in which there is a tradition of obeying hierarchical authority without question. ‘Supervision’ is simply a very good fit in the Bosnian body politic. And in part there was an acknowledgment that even if one is unhappy with any given Supervisory Order, the regime of international supervision brings stability to an area in which otherwise there would be political chaos, and disobedience to Supervisory Orders might undermine that entire regime. The unquestioning obedience to Supervisory Orders, deriving from a perception of the Supervisor as a ‘higher power’ than domestic authorities, is undoubtedly extremely valuable in a postconflict scenario in which stability is the most important prerogative. Supervisory Orders were observed despite being a poor fit with the domestic legal system and without there being any effective means of enforcement once US troops had departed. Any system of review of international legal orders must be carefully crafted not to undermine this quality. It follows from this that the venue for review of Supervisory Orders must be wholly international, not domestic, or there would be a danger that the entire process would become tainted with domestic legal politics and would be seen as being of a lesser order of authority in consequence. This also reinforces the argument for not permitting review of orders within (say) the first two years of international stewardship, when evolving out of crisis and promoting stability is more important than rectifying mistakes or individual injustices. Ultimately, the reason unquestionable legal authority has been needed for so long in post-war Bosnia is because the political institutions established under the Dayton Constitution were so poor. Creating as they did the incentive for national politicians to tear the country apart at loggerheads with one another, the system could only be held together using a form of international tyranny. If the state-building project is pursued more

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competently the next time, unrestrained international powers of indefinite duration should simply not be necessary. To this topic we will return in the final section of this chapter. Internationalised territories Internationalised territories, of the kind surveyed in Chapter Five, can be divided roughly into two types. Cracow, Danzig and Crete were independent sovereign territories. They were virtually states in their own right, the government of which was however subject to varying degrees of intervention by international organisations or foreign powers. By contrast, Shanghai and Tangiers were exceptionally administered territories within otherwise ordinary sovereign states. In these cases foreign powers or an international organisation had rights of intervention limited to the internationalised portion of territory, but the central government of the country of which the territory was a part also had limited rights. Brčko is an example of the latter kind of territory. It was not a sovereign state of itself, but it bore a rather precarious and uncertain relationship to the sovereign state of which it formed a part. Yet it went beyond a mere UN administration of territory, because the constitutional arrangement it mandated was intended to be permanent,19 or at least indefinite. By breathing new life into an old concept of internationalised territories, not used since the end of the World War II, Owen was taking a considerable risk. His plan for Brčko reopened a debate about the viability of internationalised territories, previously assumed settled by the failures of the Free City of Trieste and the internationalisation of Jerusalem in the late 1940s. Every internationalised territory previously established had either collapsed or never even begun (Ydit 1961). There must have been a real risk that the Final Award would simply never have been implemented – ignored by the local actors and abandoned by the international community in the face of unimpeachable intransigence, as happened in the Trieste and Jerusalem cases. Imposing a solution, of a kind which had no support amongst any of the three national groups, would necessarily require a colossal and sustained effort, an indefinite and quite possibly a permanent, international presence. Nonetheless, Owen’s risk seems to have paid off to a remarkable degree. Through Brčko’s success, the notion of internationalised territories is now back on the menu of possible resolutions to disputed territories. An old and previously forgotten legal-political concept is given a new lease of life by Owen’s innovations. But the experience of Brčko shows that in future the time scale of a supervisory regime may need to be very long indeed. To emphasise this point, and to show how lessons from Bosnia are already being learned and applied elsewhere, it is worth pausing to draw a brief comparison between the international community’s intervention in Bosnia and the other

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significant contemporary international Balkan engagement in Kosovo. Kosovo and Metohija was an autonomous province within Serbia during the SFRY period. It is a region that has been fought over for centuries, currently with a majority Albanian population but with significant historical and religious significance for Serbs, for whom several important historical religious sites are located within its territory. Resenting Yugoslav rule, the majority Albanian population mounted protests and insurrections against the Belgrade government throughout the 1970s and 1980s. They were brutally repressed but, in an attempt to defuse the tensions, Tito steered through amendments to the SFRY constitution in 1974, giving the province an elevated autonomous status within Serbia. It was granted its own president and achieved a legal position close to that of an SFRY republic. However, these reforms produced Albanian domination of its local institutions, generating complaints by the Serb minority of discrimination and repression. Seeing an opportunity to ride a crest of Serb nationalism, the perception of Albanian domination enabled Milošević to repeal the autonomy of the province in further SFRY constitutional amendments in 1989. This is widely considered one of the principal catalysts of Yugoslavia’s break-up. Kosovo was largely forgotten during the 1990s while war raged in Croatia and Bosnia and Herzegovina. But the problems there were fomenting steadily. The Kosovo Liberation Army (KLA) had been formed in 1995, a terrorist/freedom fighter organisation prepared to use violence to secure Kosovo’s independence. The Serbian army moved into the province in the same year and started massacring Albanian civilians in reprisal actions. Serb paramilitaries and special police units began operating in Kosovo, in an echo of the darkest days of the Bosnian war. Massacres and mass rapes were widely reported, 1 million ethnic Albanians were forced from the province, and over 10,000 were killed. Albanian and Muslim religious and cultural buildings were also destroyed. These patterns of violence escalated until the US government drafted a peace agreement between Belgrade and the Albanians and proposed it at a peace conference in Rambouillet in early 1999. The ‘Rambouillet agreement’ was inevitably rejected by the Serbs because it would have permitted NATO troops to occupy the entirety of what was left of the FRY. Its rejection was used as a pretext by the Americans to start a bombing campaign against targets throughout Serbia under the auspices of NATO. After a 78-day air campaign, Milošević conceded to NATO occupation of Kosovo and withdrawal of FRY forces from the province. In June 1999, UN Security Council Resolution 1244 placed the province under interim United Nations administration. Under the terms of this resolution, although formally the province remained part of Serbia, the Serbian government would exercise no powers within it (UN 1999). While describing the arrangements it mandated as ‘interim’, to exist in the first

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instance for 12 months, the Security Council resolution was silent on the future status of Kosovo. The interim administration, UNMIK (United Nations Mission in Kosovo), was headed by a ‘Special Representative of the Secretary General’ [of the United Nations] (SRSG), a figure with broadly similar powers to that of the High Representative, although the scope of his powers, or even their existence, is not referred to in the UN Security Council Resolution establishing his office.20 The SRSG issues ‘regulations’ and ‘administrative directions’ in much the same way as the High Representative issues decisions. The staff of UNMIK (almost 2,500) is considerably larger than that of OHR, on account of the numerous government functions the organisation undertakes. In 2008, some nine years after UNMIK was established, Kosovo unilaterally declared independence in the face of implacable opposition from Serbia and Russia and amidst concerns of renewed conflict in the province. UNMIK remains an unrestrained behemoth, a huge, unaccountable, ad hoc bloated international organisation that lumbers on. The ‘Ahtisaari plan’ for supervised Kosovan independence,21 drafted by Maarti Ahtisaari, a ‘Special Envoy of the Secretary General’ (not the SRSG) and adopted into domestic Kosovan law upon its declaration of independence, anticipated the creation of an EUappointed ‘international civilian representative’ (ICR) to replace UNMIK and the SRSG. But at the time of writing, it is unclear whether UNMIK will actually be phased out or will coexist indefinitely with the ICR in an uneasy cohabitation.22 The ICR is to have powers very similar to those of Bosnia’s High Representative (see Chapter Four). Like Dayton and the High Representative, the Ahtisaari plan places no time limit on the existence of the office of the ICR. The ICR may need to be in place for at least as long as OHR has been, to establish a functioning central government and to entrench rights for Serbian minorities. International intervention in Kosovo may well turn out to be a 20-year process. Likewise, recent experience in Iraq shows the costs of short-term (or short-sighted) international intervention. It is commonly accepted that the descent of Iraq into civil war after the US-led invasion in April 2003 was to a great extent the product of incompetence. No adequate plan for occupation was developed, capable people with experience of post-conflict reconstruction were not engaged and a hasty decision to dismantle Iraq’s military and police forces created a security vacuum which made it easy for multiple insurgent groups to operate. The insurgents had ample weapons provided from the stocks of the dismantled security forces, and ample manpower in the form of disaffected soldiers and police officers who suddenly found themselves without jobs. The post-invasion planning in Iraq was motivated by a desire by the US and British governments to be in and out of the country quickly. Had the occupying forces accepted the historical lessons of international intervention, they would have foreseen an occupation process of several years, involving gradual reorientation of the

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Iraqi security forces towards liberal democratic norms and slow re-engineering of civil institutions. In these circumstances, civil war might never have broken out. As it is, at the time of writing the situation seems hopeless. The Coalition Provisional Authority (CPA), the interim international government established after the initial invasion, clearly took some cues from recent previous international intervention efforts, preparing a series of directives, regulations and orders that bear more than a passing similarity to High Representative’s decisions. But the content of the orders was consistently motivated by a desire to terminate the CPA’s mandate in the shortest possible time scale. Barely a year after it was formed in April 2003, the CPA was disbanded, on 28 June 2004, and the period of formal civilian international intervention in Iraq was over. All that was left by way of international intervention was foreign military forces, and generals do not on the whole make good government decisions. The Bosnian experience should have made it obvious that after such a short period of time the Iraqi civilian government would be too immature to take up where international officials had left off. Chaos rapidly ensued. The lesson surely to be drawn from this is that international civilian administration is a very long-term engagement. Consider next the constitutional implications of internationalisation. Any resolution of a disputed territory issue imposed by an arbitration tribunal is likely to have vexing legal and constitutional consequences. If a Supervisor is issuing orders intended to have domestic legal effect, there must be a mechanism established by which they are explicitly incorporated into domestic law. The conflict between a country’s constitutional and political system, and whatever government model internationalisation of territory creates, must be anticipated and resolved. In the Brčko case, the relationship between the powers of the state and the District was left unclear and Brčko was left without any political representation in state bodies. The assumption that state institutions would have protected Brčko’s interests proved wildly unrealistic. Brčko has ended up a territory in legal limbo and this may be the biggest single cause of its ultimate downfall. Owen may have anticipated a far greater degree of cooperation and pressure by the international community to secure the District’s long-term legal and constitutional status within Bosnia than actually occurred. He may have anticipated a greater degree of acceptance of the Final Award by the Entities than ultimately came to pass. But the lesson for the future is that any arbitration award or other legal instrument internationalising a disputed territory must be quite explicit and detailed about the con-stitutional status of the territory, and about the means of enforcing that status in the face of intransigence by local political actors who resent the resolution imposed. Any programme of internationalisation must anticipate the termination of supervision or similar international community in-volvement in the country, or the resolution it mandates is unlikely to last. In the case of

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Danzig, extensive treaties regulating its relationship with its Polish neighbour were immediately negotiated. Those treaties were sub-sequently heavily tested and the High Commissioner had to resolve dis-putes about their meaning in the face of a distinct lack of good faith by Polish authorities. But the mechanism established for resolving disputes about the relationship between Poland and Danzig was clear and, unlike in the Brčko case, there was no long-term constitutional limbo, because the treaties regulating Danzig’s constitutional status were negotiated in the immediate aftermath of the Peace Treaty of Versailles that provided for creation of the Free City. By contrast, Brčko had to wait until June 2007 for the addendum to the Final Award to say anything substantial about its relationship to the state. Even then, its constitutional position remained obscure and by that time it was too late to secure implementation because, in the face of lack of US interest, there was nobody left to enforce it. For the Tangiers International Zone, the power of the Sultan of Morocco within the internationalised territory was, like Danzig, clearly demarcated by treaty and the constitutional provisions of its Statute. These precedents must be born in mind in future projects to internationalise territories. Acquiescence of the contesting parties in the status of a disputed territory may not occur for a long time, or ever. A legally robust relationship between the territory and its contestants must therefore be created at the outset. Insofar as is possible every eventuality must be planned for, with a strong judicial mechanism for resolving the unforeseeable. Owen’s clause providing the tribunal with ongoing jurisdiction was too weak because of the ambiguous funding status of the tribunal and the high hurdle (serious noncompliance) the Final Award set itself for re-invoking that juris-diction.23 Brčko provides some empirical evidence for the post-liberal theory that one should undertake legal, institutional and economic reforms prior to the holding of elections – in other words, that in post-conflict environments premature elections are a mistake.24 In contrast to the rest of Bosnia and Herzegovina, elections in Brčko were held very late – eight years after the first post-war countrywide elections (in 1996). During the intervening period, it was possible to push enormous institutional advances, even in a multi-ethnic context (a burden not faced elsewhere in Bosnia, where ethnic cleansing had been virtually complete and unreversed). By contrast, the early elections held elsewhere in Bosnia and Herzegovina contributed to a ‘near monopolistic stranglehold’ by the nationalist parties and severely hindered institutional reform (Bieber 2006, pp.90–93). The level of institutional success achieved in Brčko was driven only by close international attention and significant backsliding has been observed since the October 2004 elections. It is an open question whether the institutional superiority achieved by enacting institutional reform prior to elections is sustainable once supervision ends.

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This leads into another observation: the toughest challenge for a territory placed under international supervision is the framing of an exit strategy. In Brčko the Supervisor has become a fourth branch of government, relied upon by the executive, legislature and judiciary, and by all ethnic groups, to resolve differences and make difficult decisions that would otherwise be politically unpalatable. A strong sense of reliance has developed amongst local actors. It remains unknown how District institutions will function without a Supervisor to act as a mediator and stabilising influence. The recent evidence suggests that gradual withdrawal is accompanied by gradual decomposition. Just like colonial government structures, institutions imposed by international supervision will inevitably remain ‘transplants’ to a degree, created without sustainable domestic political support and therefore liable to fracture once the international pressure to maintain them evaporates. This is a fundamental limitation of any arbitration–supervision process and there is probably no way around it. It is hard to speculate whether the departure of the Danzig High Commissioner in the mid 1920s would have precipitated the territory’s collapse even earlier than the advent of Nazi rule, but it may well have been that without this official, Polish claims upon the territory would have become ever more encroaching and irresistible. Historically ingrained ethnic confrontations take a long time to resolve themselves. In light of this, one ought to revisit the issue of the time scale and purposes of international supervision. It may well be virtually impossible sustainably to accelerate institutional development by international intervention. Post-withdrawal backsliding will inevitably damage one’s achievements heavily. But then the purpose of supervision needs to be reconsidered. Its goal should be to create institutional and economic reforms, not because they are necessarily sustainable but because they bring temporary peace and prosperity to the disputed region until such time as the political structure of the country evolves sufficiently that the territory is no longer significantly disputed. This makes supervision look like a very long-term exercise. In Bosnia and Herzegovina, the Brčko territory will remain disputed for as long as there are Entities; and the Entities look like they will exist for significantly longer than the international community has the political will to remain in the country as international overlords. The only thing that could lead to rapid abolition of the Entities would be concerted international action to do so, followed by long-term commitment to ensure implementation of such a dramatic reform becomes ingrained; or a new war, in which Bosniac forces achieve a substantial victory. Both these outcomes seem unlikely. From this there follows a general lesson that can be gathered from Brčko about all UN or international community intervention in postconflict territories. Intervention is a long-term engagement, likely to last at least ten years for military forces and at least 20 years for civilian missions,

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if its work is to be sustainable. A similar point is made by Peter Farrand, son of Bill, who makes it clear that his father is of the same view.25 International supervision, say the Farrands, needs to be established on an indefinite timescale, without any predetermined exit date that would undermine cooperation by domestic actors. If Supervision ends too quickly, the costs of repartition of a disputed territory, in economic and residential dislocation and political instability, may outweigh the temporary benefits to a territory’s citizens of internationalising it. Internationalisation of territory tends not to be popular with its citizens, as the example of the Saar plebiscite in 1935 indicates. The Saarland was a coal-rich region of western Germany, the economy of which was effectively ceded to France for 15 years by the Peace Treaty of Versailles as compensation for Germany’s destruction of France’s coalmines in the World War I. It was to be run under the trusteeship of the League of Nations by an international ‘Governing Commission’. At the end of the 15-year mandate, a plebiscite of the citizens of the Saarland was arranged, in which they were given the choice of continuing to be an internationalised territory or returning to the full sovereignty of Germany. Even though the Nazi government had since come to power in Berlin, the citizens of the Saar overwhelmingly voted to be reunited with Germany. This may be seen as an illustration of the general rule that people do not like to be subject to a domestically unaccountable international regime. In Brčko, almost every citizen would vote for the return of sovereignty of the District to domestic authorities; unfortunately, they would differ on which domestic authorities to whose sovereignty to return, in a rough proportion of 2:2:1. Internationalised territories are therefore inherently unstable and unlikely to survive without a strong international presence being maintained. Unfortunately, unlike in the age of Empire, the political pressures facing contemporary intervening states render an open-ended commitment difficult to sustain. Ultimately, even though it must be a long-term commitment, the costs of international intervention are probably still money well-spent: for the costs of peacekeeping, particularly civilian administration, remain significantly lower than the costs of fighting a war and dealing with political instability in a region in armed conflict. It has been argued26 that one of the keys to Brčko’s success has been international custody by a single foreign power that yields a sense of responsibility which is lacking where there is a more diffuse sense of ownership for the project of running an internationalised territory. Where responsibility is devolved to the ‘international community’ in general or shared between several states, none may feel a sufficient sense of obligation to ensure the project is successful. This is true to a degree. Successive Supervisors felt bound to report to nobody except the US State Department and this undoubtedly gave them a degree of independence from the wider bureaucratic frustrations of working with multiple international

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community partners with overlapping mandates. It also helped that Brčko received funds from the US State Department and USAID. But the State Department started losing interest in Brčko relatively early on, shortly after the Final Award was issued. The work of the Supervisor was tolerated, but without any particular interest. A great deal of Brčko’s successes derived from the commitment not of the US government but of three of the Supervisors (Farrand, Clarke and Johnson) who took the job. And the disadvantage of the project being associated with one particular foreign power was that when that foreign power did lose interest, the Brčko project floundered. Political instructions were conveyed to the Supervisors (in particular Johnson and Gregorian) – to close the mission – that were inconsistent with the legal mandates given to them by the tribunal’s awards, the political realities in the District and the best interests of its citizens. It is perhaps dangerous, when internationalising a disputed territory, to rely too heavily upon the patronage of one individual foreign power; for, should that power’s interest wane or priorities change, the territory will find itself all at sea. Electoral structures A comment should be made about the importance of creating a sustainable multi-ethnic domestic political and electoral system within a disputed territory. In Brčko, as in the whole of Bosnia and Herzegovina, this was not done well. Ethnic division was institutionalised in the Dayton Constitution, through an explicit political division of territory along ethnic lines. Electoral units were created along those territorial divisions, ethnic quotas reflected the territorial divisions and minority vetoes were based upon ethnic partition. Election laws countrywide reinforced nationalist political agendas by failing to create incentives for voters to vote for candidates other than from their own ethnic group. No political party had significant multi-ethnic support and therefore no politicians had an incentive to promote a crossethnic agenda. The nationalist political parties were thus left to pursue their partitionist goals unchecked by electoral moderation. Ethnic quotas and ethnic vetoes at every level of government in both Entities reinforced ethnic voting patterns. It was said by Paddy Ashdown that Bosnia has wonderful people but terrible politicians (Guardian 2005). It is easy to be sympathetic with the sentiment underlying this remark, given the nationalist rhetoric and political deadlock prevalent in Bosnian politics, and the personal warmth of the Bosnian people a casual visitor to the country will encounter. But as a means of understanding the political problems of modern Bosnia, such a comment is dangerous, for it focuses upon the personal failings of politicians rather than appreciating that their traits as politicians derive from the political system within which they operate. This is a mistake many in

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the international community in Bosnia have made. The reason Bosnian politicians are so nationalistic and belligerent is that the political system created by the international community has provided them with incentives to be so. It is the misconceived political structures put in place at Dayton and subsequently reinforced by international community blundering that have been the principal reason for the country’s post-war failures. This course has made nationalist politics increasingly inevitable, instead of something one would hope would gradually fade. As in most developed political systems in which power is shared broadly, senior Bosnian politicians are extremely able, which is why they have risen to the top. Their abilities lie in exploiting the system in which they operate, to promote themselves. The Bosnian political system, exclusively a creation of international officials and diplomats, motivates nationalist rhetoric and demotivates cooperation. The lesson to be drawn from this observation is that where, as in Bosnia, a bad political system had to be created to end a conflict, one cannot expect that political system to reform itself. The Dayton Constitution is a bane. It was written by State Department lawyers, and imposed in highpressure negotiations in which American diplomats made barely concealed threats (Holbrooke 1999). It was an unholy compromise between the Bosniacs’ desire for statehood and the Croats’ and Serbs’ desires for autonomy and independence. It stopped the guns but in its structures it recreates the very dynamic that led to the war. Without the twin adhesives of an international military presence and international civilian dictatorship, it is unreasonable to expect the regime to transmute naturally into a modern western state. In future international interventions to resolve conflicts, far greater thought must be given to the government structures created. At the time of Dayton, little attention was focused upon the long-term consequences of the Dayton Constitution, because the short-term US domestic political benefit of reaching agreement was an end to hostilities. To the extent that such shortsightedness by a foreign intervening power or consortium of powers is inevitable, the international community must commit itself to subsequent corrective measures once the errors in the initial system are uncovered. Despite the breathtaking and legally ungrounded expansion of the High Representative’s powers that Westendorp and the PIC awarded the office, the High Representative has never decided to decree that he could amend the Dayton Constitution. Given the leaps of legal fiction already involved in the High Representative’s exertion of his extraordinary authorities, it is unclear why not. It is not enough to castigate Bosnia’s politicians for their nationalist sentiments, and lament that one cannot change the way people think, when it is the international community itself that has created the system which makes people think that way. The Dayton Constitution needs to be rewritten. It will not rewrite itself, because the politicians who work

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within it have no incentive to change it. By contrast, the District Statute, another Bosnian constitutional document, was also prepared by international officials, but in far less of a rush than the Dayton Constitution. It contained fewer mistakes and could be rewritten once time had demonstrated where its flaws lay. International imposition of government structures on feuding peoples is a haphazard process. It will take abnormal periods of time, commitment and flexibility to adjust those structures to create something independently sustainable without constant intervention. Likewise, it will take domestic politicians at least one or two electoral cycles to become used to these new structures, and the compromises and new political skills they may need for government to be effective under novel models. Nurturing those structures over an extended period is a necessary component of the project foreign intervening powers take upon themselves when they meddle in other people’s wars. Similarly, a great deal has been learned since Dayton about creating electoral systems in divided societies. As was seen in Chapter Seven, in the Bosnian post-conflict environment, the voting system imposed caused the electorate to vote solely for candidates from their own ethnic group. This created compelling incentives for candidates, once elected, to represent the interests only of their own ethnic group and to ignore the interests of the remainder (majority) of the population. An election system which requires each member of the electorate to vote for candidates from every principal ethnic group would revolutionise the domestic politics of a post-conflict country like Bosnia and Herzegovina. Each elected politician would have to consider the interests of citizens from all three ethnic groups, as they would be relying upon the votes of people from all three groups. The incentive for nationalist politics might evaporate almost overnight, and those politicians unable to move away from crude nationalist ideologies would rapidly disappear from view. The academic work on this topic has been undertaken elsewhere. But one of the most enduring lessons of international involvement in Bosnia as a whole and Brčko in particular is that without radical electoral reform, the domestic political system will remain quite unstable. It probably cannot survive without perpetual crisis once forcible international intervention in the country has ended. Was it all worth it? It is easy to list in short order the things that were done well in Brčko. First and foremost, an arbitration process managed to forge a political resolution that no negotiated agreement could have reached. Only through the singular wisdom of Roberts Owen, the Presiding Arbitrator, could that have occurred. Through the dedication of a series of tremendously impressive Supervisors and staff, a disproportionate amount was achieved with the resources available. Dogged pursuit of refugee returns proved essential

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to recreating the image of ethnic cooperation that existed pre-war. The District Statute, as a constitutional document, was laboured over carefully and was revised when necessary. Legal reform and promotion of foreign investment were pursued by capable and experienced people. Focusing on tax reform and revenue collection gave the District a sound financial base. There was no formal recognition of ethnic quotas in either the electoral system or public institutions. Education was reintegrated and if that reform proves sustainable it will lay the groundwork for a more harmonious future amongst the new generations. Several mistakes were also made. Arrogance born of success made for a needlessly antagonistic relationship between OHR North and its parent organisation. Mistakes made in electoral reform Bosnia-wide were imposed upon Brčko. A premature loss of interest by the US State Department made the collapse of the District virtually inevitable, although premature loss of interest may itself have been inevitable. Finally, the failure to spell out the precise relationship between the District and the state of Bosnia and Herzegovina exacerbated tensions between the two OHR offices and created perpetual legal headaches for the District. If one adopts the view that the loss of interest by the US government was indeed sooner or later inevitable, then one acute question remains. It was open to the tribunal to cement the ethnic cleansing that occurred in the war by dividing the territory within the Brčko area roughly along the ceasefire line, instead of internationalising the territory and mandating more than a decade of intensive foreign intervention. Certainly that would have been just as controversial a thing to do. It is probably what any tribunal would have done that did not have the backing of the US government and US military. It was probably at least as sustainable an option as creation of the District. Although both sides threatened renewal of hostilities in the Brčko area, that was arguably unrealistic in the late 1990s due to the intense concentration of US troops in the region. People would have acquiesced in the partition of Brčko, as they had acquiesced in the partition of so many other front-line towns in Bosnia. Resentments would have lingered, but to no worse an extent than elsewhere in the country. Was Owen right, then, to forego this simplistic course and instead lovingly recreate the keg of gunpowder? This is a question to which, for now, nobody knows the answer. But a work such as this must address the question head-on, even if the response given is uncertain and riddled with speculation. Creation of the District has made RS independence a vastly more complex prospect. That may or may not be a good thing. Should one take the view that the RS will inevitably declare independence sooner or later, and there is nothing anybody in the international community can do about it, then the creation of Brčko may just have complicated the inevitable and might conceivably spark renewal of armed conflict where peaceable secession would otherwise have been possible. On this bleak scenario for Bosnia, the same thing may be said about many of the international

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community’s innovations in the country: they have merely complicated what would always happen sooner or later and thus were a waste of time. Should the RS pursue the independence course, the very best that Brčko can hope for, backed by a newly invigorated US government, is to negotiate a special status as an autonomous territory which guarantees rights of passage to RS traffic across its boundaries. But without significant international pressure that may well not be forthcoming, that scenario is probably too optimistic; on this type of scenario, pressures for repartition of the District or its absorption into the RS will be strong and Bosniac returnees will resist, probably violently. On the other hand, more optimistically, if Bosnia has a viable future as a single state, for example through negotiation by domestic politicians of a post-OHR federal constitution, then perhaps Brčko has set a precedent for local multi-ethnic cooperation. It demonstrates that whatever the corrosive political dynamics at the national level, local people, who have always lived together, can cooperate again. The District might be able to fit into a new federal constitution as an autonomous regional unit. Imagine a decentralised state with five regions: western RS, eastern RS, Brčko District, Bosnia (Bosniac) and Herzeg-Bosna (Croat). This is an extremely optimistic scenario. It assumes that politicians from the three ethnic groups will be able to reach significant compromises on Bosnia’s constitutional structure and sell those compromises to their respective constituencies without imposition from outside, when the country has no historical record of ever being able to do this before. It also assumes that in the meantime, Brčko District will manage to sustain itself as a functional political unit in the absence of the Supervisor. Domestic Brčko politicians consider this most unlikely. The consensus appears to be that in the period of political chaos in Bosnia that will ensue after the closure of OHR, the inability of the three ethnic groups to cooperate in Brčko will create a de facto partition of the District into a series of territorially noncontiguous areas in which one ethnic group or the other will predominate and, following the Herzeg–Bosna model, informal parallel institutions may replace formal District public bodies to a consi-derable degree. If that happens, then one can only hope that the foreign investors who have come to the District do not get scared off, and the rel-ative wealth of the area keeps some element of political homogeneity in the District, notwithstanding a degree of inevitable fracture. We should recall once more the state-building literature with which we began in Chapter One. Reviewing the 12 years of post-war Bosnian political history, the liberal peacekeeping agenda seems to have gone sour. Elections achieved nothing of value in post-war Bosnia, merely bringing to power nationalist politicians incapable of compromise. In part this was because of the flawed electoral system the international community introduced, but in part the elections were simply too early. The post-liberal institution-building model has received some support in the Brčko experience. Enormous

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amounts were achieved while Brčko’s public institutions were fashioned by an international dictatorship. Yet when democracy did come to Brčko, it unleashed all the problems that had infected democratic politics in the rest of the country. Perhaps, then, even the post-liberal institution-building model is naive, for under a dictatorship, no matter how benevolent, a genuine culture of political compromise cannot thrive. Thus delaying elections only delays the inevitable. For a society to learn democracy is painfully slow, and it may be that another ten years of vigorous supervision would have been necessary for a genuine multi-ethnic democratic spirit to have emerged in Brčko District. Finally, the Brčko experiment demonstrates an important point about the effectiveness of international organisations. The success of such organisations in competently pursuing their mission is very contingent upon having the right people in the right place at the right time. There was no guarantee that the Brčko Final Award Office would have had capable and committed staff. In an unaccountable legal and political environment of the kind that characterises international organisations, success is very much left up to chance. And where external political backing of the organisation’s mandate by interested foreign governments falls away, the most successful and streamlined international organisation can be left floundering in the mud. It does seem possible to make one prediction now with some degree of certainty: the future prospects of Brčko very much depend upon the future of the rest of the country. It is impossible to imagine that the collapse of Bosnia would not precipitate the political collapse of Brčko, without extraordinary foreign political support to the District that is unlikely to be forthcoming. Many will speculate upon the future of Bosnia over the next months and years. But the essential choice for the country is already clear: [P]erhaps the rest of the country will be obliged to go the way of the anomalous town on the River Sava. But at the moment it is even money whether brave little Brčko will become the model for Bosnia’s future, or a tragically irrelevant memory from the past.27 Only the next ten years of Balkan history will yield the final answer to that question, but some tentative conclusions can be drawn now. The arbitration–supervision model applied by the international community in Brčko yielded some remarkable successes. It also exhibited some significant weaknesses, from which much can be learned. The model was sufficiently remarkable that its application elsewhere in disputed territories should be seriously considered. It can bring peace, stability and prosperity to a territory and create a model for broader post-conflict reconciliation within a country. But it is a long-term project, and its achievements may be fragile if the successes it creates do not correspond to broader improvements in the country in which it operates, or if there is insufficient

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domestic legal and political protection for a new governmental unit created by the arbitration process. The next time arbitration and supervision are undertaken in a disputed post-conflict territory, the lessons will have been learned and the results will be even more impressive and hopefully more sustainable. To that political aim this work hopes to have made a modest contribution.

EPILOGUE

Brčko District held its second democratic local elections on 5 October 2008, at just the time the main text of this book was being finalised. Supervisor Gregorian brought enormous pressure to bear in an attempt to ensure the elections went smoothly. Rumour had it that Gregorian had been promised promotion out of Bosnia if he could ensure Supervision’s prompt closure before the end of the year, and he was desperate to cash in on this promise before the Republican administration in Washington, DC fell to an anticipated Democratic landslide in US presidential elections on 4 November 2008. To press home his message that District officials had better cooperate quickly so that he could escape, he fined all the councillors and banned their entertainment allowances because they had failed to appoint a member of the Election Commission (OHR 2008f). He then fined the entire District government one month’s salary because it was one week late in adopting the budget (OHR 2008g). But even these bizarre collective punishments failed to prevent a chaotic outcome to the elections, for which BFAO was in part responsible. It had expanded the number of councillors from 29 to 31, stipulating that the extra two must ‘represent[ ] national minorities’, a term left perilously undefined. This upset the Assembly structure by adding two wild cards over which the political parties and national groups would fight. This would make it even harder to form a coalition. The election results were certified on 20 October and the results were as follows: SDP 8, SDS alliance 6, SNSD 4, SBiH 3, HDZ 2, Democratic Party (Serb) 2, HSS 2, SDA 2, SPRS 1, independent 1. The two ‘national minority’ councillors were an Albanian member of SDP and an independent, a Roma, who were elected with only 158 and 71 votes respectively (compared to an average of over 2,000 votes obtained by each of the other 29 councillors elected). Serbs had 13 seats to Bosniacs’ 12, with Croats holding only 4. Unlike in the 2004 elections where they conspicuously failed to cooperate, SDS and SNSD issued a joint declaration that they would insist on the mayor being a Serb. Because the Assembly now consisted of 31 members, 19 councillors were required to form a majority.

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The two councillors who received the most votes were Mirsad Đapo (SDP, incumbent mayor) and Mladen Bosić (President of SDS). It therefore appeared that the negotiations to form a government would bear the same dynamic as those after the 2004 elections, with both SDP and SDS competing to construct a coalition with its man as Mayor before the other. However, Gregorian found neither of these options palatable: he disliked Đapo, against whom his predominantly Serb staff had been briefing, and did not want to inaugurate an SDS-led government, still sullied by memories of wartime atrocities, on his watch. He therefore told both principal candidates he would veto their appointment as Mayor. But neither did he want to impose a government by dictate, lest that undermine the impression that the District was a model of stability and thus ready to be released from international supervision. By February 2009, there was still no government coalition formed. To force in his own preferred choices of candidate, on 6 February Gregorian suspended the salaries of the entire District Assembly, and also the Mayor (but nobody else in the government), until a new Mayor, Speaker and deputy Speaker had been elected (OHR 2009). This pressed SNSD and SDP into a temporary coalition, to elect Dragan Pajić, a previously little-known Serb, as Mayor, and Đapo as Assembly President, just six days later. This result hardly reflected the democratic will; SDP had won twice as many seats as SNSD, and SDS’s own candidate was vastly more popular than Pajić. It took until 11 March 2009 to announce the other members of the government. At BFAO’s insistence, the new government represented an unholy coalition of all the major political parties in Brčko, including arch-rivals SDP and SDS, hitherto incapable of cooperating on anything. There seemed little chance that this novel arrangement would prove workable or contribute to the District’s stability, but on 30 June 2009 the Supervisor announced to the PIC that the District’s institutions were functioning ‘effectively and apparently permanently’, and accordingly OHR Brčko’s would close in November 2009. At the time of writing it seemed possible this time limit would slip, but the prospects of the District government operating successfully thereafter seemed uncertain. At the same time as extreme pressure was being applied to the District’s politicians, BFAO was pumping out to the international community a message of Brčko’s success, stability and prosperity. On 15 October 2008 a group of EU countries’ ambassadors to Sarajevo visited Brčko on the Supervisor’s invitation, an event without precedent since the establishment of the District on 8 March 2000. But alarm bells were ringing elsewhere. Richard Holbrooke and Paddy Ashdown wrote a widely reported joint editorial, issuing dire warnings of the country’s imminent collapse and arguing for continuation of OHR (Guardian 2008). This was a sad irony, given that just three years earlier Ashdown, then High Representative, was pushing for closure of the organisation. EU Enlargement Commissioner

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Olli Rehn gave a speech to the EU Parliament on 23 October 2008, also predicting political catastrophe. Despite all these warnings, there was nothing anybody in the international community could or would do. OHR was terminally enfeebled. Scenting blood, the RS Prime Minister Milorad Dodik was determined to kill the organisation off, openly warning that he would not accept any more decisions the High Representative tried to issue, and demanding that OHR close immediately. From the end of October 2008, nobody seemed certain of the country’s future. OHR might drag on indefinitely in name, but the only decision left for it to take with any political significance was its own closure date. In the power vacuum created by the organisation’s collapse, a real chance existed of renewed civil conflict, but the more likely course, at least in the short term, seemed indefinite political stagnation as the country’s politicians took stock of the very different political environment in which they were operating now the international protectorate had, for most purposes, ended. In November 2008 leaders of SNSD, SDA and HDZ began their own negotiations on constitutional reform, called the ‘Prud Agreement’, from which OHR was intentionally excluded. Those talks seemed moderately hopeful and a consensus seemed to be emerging about the survival of Bosnia as a ‘union of loose federal units’. But they were abruptly suspended in February 2009, after the State Investigation and Protection Agency (an embryonic State police force created by OHR) filed a report with the State Prosecutor accusing Milorad Dodik of embezzlement. Suspicions were that OHR played a hand in the investigation; Gregorian and Dodik had recently engaged in a public spat in the press. Dodik walked out of the Prud talks and started demanding a right for RS secession as a precondition for further discussions. Then High Representative Lajčák dramatically resigned in February 2009. He had been offered the job of Slovakian foreign minister, and was no doubt ecstatic at his deliverance from the Bosnian mire. The Americans pushed for Gregorian to become the new High Representative, the Europeans refused and a new European candidate, the hitherto low-profile Austrian diplomat Valentin Inzko, assumed office at the end of March 2009. Nobody imagined Inzko could achieve anything valuable except prompt closure of the organisation over which he was being brought in to preside, while Bosnia’s domestic politics pursued its own autonomous trajectory. By the middle of 2009, Dodik’s continuing confrontation with statelevel judicial authorities caused him to embark on a project to bring state institutions tumbling down. On 14 May 2009 the RS National Assembly issued a decision which appeared to declare that the RS could unilaterally withdraw from the High Judicial and Prosecutorial Council, the state-level judicial body, and Dodik used Serb votes on that body to block reappointment of international Judges in the state court after the expiry of their mandates at the end of 2009. The RS National Assembly’s decision

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was annulled by Inzko on 20 June, but it was not clear that anybody would respect the High Representative’s authority. At the same time, the global economic crisis began to take its toll on Bosnia. Italproject, the foreign investors in Arizona Market, quietly announced their departure from the District. At the same time, the Federation Government had become bankrupt and conditions attached to an IMF bailout loan required cutting civil servants’ salaries and war veterans’ invalidity payments, causing countrywide demonstrations. The majority of the imaginable scenarios for the immediate future were more or less depressing, but there remained a lingering sense that OHR is to blame for much of the country’s mess. It had vastly over-stayed its welcome. Having lost all power, it had become little more than a mouthpiece for moral indignation that its prior works were now being undone by newly confident domestic politicians. By building up state institutions too close to the end of its mandate, and with insufficient domestic support, it had made the country’s resulting fall far harder than it need have been. By fading away ungraciously, it had placed Bosnian politics in stasis for at least three years, as political debate became focused almost exclusively upon the organisation’s authority and closure, rather than the pressing economic misery to which Bosnians were perpetually subject. The final demise of OHR was therefore long overdue, but it was also a tragedy in the making. Bosnia’s people had not asked for heavy-handed international supervision. It had been imposed upon them by foreign powers at the expense of gradual development of a genuine democratic polity. Unlike prior efforts to run Bosnia from the outside, from the Ottomans to the Austro-Hungarians to the Communists, the latest attempt by foreigners to stamp their will on the country had been pathetically shortsighted, lasting barely eleven years. Now Bosnia’s people were being thrown into the wilderness by those in the international community who had served as their post-war guardians, for no better reason than collective inattention and want of interest. The people of Bosnia deserved better, and we failed them.

APPENDIX 1 A Possible Legal Framework for the Powers of a Future International Official, and a Mechanism for Appeal and Review of Orders The following draft text might be used in an international legal instrument, such as an international treaty ending a war (like the DPA), a UN Security Council resolution mandating international intervention, or an award of an arbitral tribunal in the Brčko mould. Text of this kind would regulate the powers of an international official charged with supervision of domestic institutions in an international civilian administration. It is drafted using the language of a ‘Supervisor’, but could equally apply to Bosnia’s High Representative, Kosovo’s SRSG or International Civilian Representative, or any similar international civilian authority with broad executive and legislative powers. Article [ ]: Powers and authorities of the Supervisor 1. Powers (a) The Supervisor may at his or her discretion issue binding decisions and orders that: (i) Interpret one or more provisions of this [international instrument – could be a Security Council Resolution, Tribunal Award or treaty] where there is a dispute between interested parties about the proper interpretation, or where there is an uncertainty or ambiguity about the meaning of the provision(s). (ii) Require a public authority to act in a certain way, or refrain from acting in a certain way. (iii) Establish an ad hoc or permanent public authority on such terms as the Supervisor may provide. (iv) Annul the legal consequences of acts of public authorities, on such terms as the Supervisor may provide. (v) Enact legislation, that shall have the same legal effect as it would had it been enacted by a domestic legislative authority. (vi) Appoint a person to public office, or dismiss a person from public office, on such terms as the Supervisor may provide, including prohibiting a person from holding public office for a fixed period, and prohibiting a person from holding any office within a political party for a fixed period.

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A FREE CITY IN THE BALKANS (vii) Impose other sanctions short of dismissal upon public officials, including suspensions and deductions from salary, on such terms as the Supervisor may provide. (viii) In exceptional circumstances only, where such a measure is necessary to achieve one or more purposes listed in paragraph 2(b) below, compel a person or persons in a private capacity to act or refrain from acting in a certain way.

(b) The Supervisor may also issue orders and decisions where given the authority to do so elsewhere in this [international instrument]. (c) Orders and decisions of the Supervisor shall prevail over all conflicting domestic law of every kind, up to and including the provisions of the Constitution. (d) Orders and decisions of the Supervisor shall be observed and obeyed by all public authorities for as long as they remain in effect. (e) Orders and decisions of the Supervisor may be stated to remain in effect after the period of Supervision ends, but in that case the Supervisor must provide for a mechanism for their modification or repeal by domestic institutions after the end of Supervision. Only in exceptional circumstances may orders and decisions of the Supervisor be described as of permanent effect. (f) Orders and decisions of the Supervisor shall be enforced by all relevant police forces, courts, prosecutors, administrative and quasi-judicial bodies, both on their own initiative and upon the direct request of the Supervisor. 2. Limitations (a) Orders and decisions of the Supervisor must be in writing, and must be published in such way that members of the public and affected officials have reasonable access to them. (b) The powers listed in paragraph 1(a) above may be used only for one or more of the following purposes: (i) Correcting an act of a public authority which violates this [international instrument] or any applicable law or constitutional provision, where correction of that act pursues the goals of this [international instrument]. (ii) Pursuit of one or more goals of this [international instrument], where it is reasonably apparent to the Supervisor that domestic public authorities cannot act to achieve the goal(s) or are not prepared to act with appropriate haste or are acting to hinder pursuit of the goal(s). (iii) Prevention of crime or the recurrence of crime, including but not limited to prevention of civil unrest. (c)

In addition, the powers listed in paragraphs 1(a)(vi) and (vii) above may be used only where a public official has deliberately disregarded his legal duties, or is guilty of gross negligence.

APPENDIX 1 (d)

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Any exercise of the Supervisor’s powers must be proportionate to the purpose pursued.

3. Judicial review (a) (b)

(c)

(d) (e) (f)

(g)

(h)

(i) (j)

Domestic courts and tribunals shall not have jurisdiction to entertain any challenge whatsoever to an order or decision of the Supervisor. An ad hoc tribunal shall be established from time to time to hear appeals from orders and decisions of the Supervisor. The tribunal shall consist of three neutral arbitrators of international standing appointed by [the Permanent Court of Arbitration] and shall issue its decisions by a consensus or, where it cannot reach a consensus, by a majority of the arbitrators. Any order or decision of the Supervisor may be appealed to the tribunal by any interested person, save that no order or decision of the Supervisor issued within the first two years of the commencement of Supervision may be appealed. No appeal shall be filed against a decision or order later than sixty (60) days after the decision or order is published. An appeal shall not stay the effect of an order or decision of the Supervisor unless and until the tribunal so orders. The tribunal shall adopt its own procedural rules, with the proviso that every effort is made to ensure the tribunal’s procedure is expedited, and oral hearings are kept to the minimum necessary for the interests of justice. The tribunal shall allow an appeal against an order or decision of the Supervisor where it finds that the Supervisor exceeded his or her powers, or has otherwise made an error of law or fact that makes the order or decision unsound. Where the tribunal allows an appeal, it may issue a declaration on the law, and/or the rights of the parties; annul the order or decision, in whole or in part, and ab initio or with effect from some other date; modify the order or decision; and/or give the Supervisor instructions and/guidance on how to amend the order or decision and state a time scale within which that must or should be done. Decisions of the tribunal shall be final and binding, and shall not themselves be subject to appeal, or to challenge before any national court. Expenses of the tribunal shall be defrayed by [the United Nations etc.].

APPENDIX 2 Mandates Of Senior International and Domestic Officials in Post-War Bosnia High Representatives December 1995–June 1997 (18 months): Carl Bildt, former prime minister of Sweden. Bildt had no ‘Bonn powers’ and issued no High Representative’s decisions. June 1997–July 1999 (25 months): Carlos Westendorp, former Spanish Minister of Foreign Affairs and Ambassador to the United Nations. From December 1997 the position of High Representative was imbued with the ‘Bonn powers’, being powers of international imposition over domestic authorities. From then on Westendorp used these powers, in High Representative’s decisions, an average of 3.6 times per month. August 1999–May 2002 (34 months): Wolfgang Petritsch, former Austrian Ambassador to Yugoslavia. Issued High Representative’s decisions on average 7.4 times per month. May 2002–January 2006 (42 months): Paddy Ashdown, former leader of the Liberal Democratic party in the United Kingdom. Issued High Representative’s decisions on average 10.6 times per month. February 2006–June 2007 (17 months): Christian Schwarz-Schilling, former minister of post and telecommunications in Germany. Issued High Representative’s decisions on average 3.9 times per month, but notably removed nobody from office during his tenure and imposed no new legislation (although existing legislation was amended). July 2007–March 2009 (21 months): Miroslav Lajčák, Slovak diplomat. Between July 2007 and January 2008, he issued High Representative’s decisions on average 2.7 times per month. He then abruptly stopped issuing decisions of legislative substance. March 2009– present: Valentin Inzko, Former Austrian Ambassador to Slovenia. At the time of writing it remained to be seen how, if at all, Inzko would attempt to use the ‘Bonn powers’. Certainly his approach would be sparing at most.

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Brčko Supervisors April 1997–May 2000 (38 months): Robert W. (‘Bill’) Farrand, former US Ambassador. Issued Supervisory Orders on average 0.9 times per month. June 2000–March 2001 (9 months): Gary Matthews, former US Ambassador. Issued Supervisory Orders on average 0.6 times per month. April 2001–September 2003 (29 months): Henry L. Clarke, former US Ambassador. Issued Supervisory Orders on average 0.8 times per month. January 2004–September 2006 (33 months): Susan R. Johnson, American diplomat. Issued Supervisory Orders on average 0.9 times per month. September 2006–November 2009 (37 months): Raffi Gregorian, American civil servant. Between October 2006 and March 2009, he issued Supervisory Orders on average 0.7 times per month. Note also Gerhard Sontheim, Deputy Supervisor (former German army officer), who issued on average 1.8 Supervisory Orders per month during the four months when he was acting Supervisor (March–April 2001 and October–December 2003). Brčko Mayors Until 1994: In the early years of the war Brčko was run by a military arrangement called the ‘wartime Presidency’. The members of this authority at various times were Djordje Ristanić, Milenko Vojinović and Bosko Maričić, although the exact dates each held executive office, and their responsibilities, are unclear. The two members still alive at the time of writing (Ristanić and Maričić) are understandably reluctant to describe what their roles were during the war, in light of the extensive war crimes committed in the Brčko area against civilians and the potential for them to be implicated. 1994–December 1997: At some point in 1994 the civilian authorities reclaimed control of Brčko. The rump RS Brčko Assembly (that is to say, the pre-war Brčko Assembly, minus the Bosniac and Croat members who had fled or been killed) elected Miodrag Pajić as their president. Pajić subsequently undertook a role akin to that of mayor. He was a member of SDS but a local citizen of Brčko from before the war and was perceived as a moderate. He was forced out by the SDS leadership in Pale in December 1997 for cooperating too closely with Supervisor Farrand. January 1998–March 1999: Borko Reljić, SDS. While more hard-line than Pajić, Reljić was not particularly loyal to SDS in Pale and did not by all accounts relish the job that SDS had forced him to take. He resigned in March 1999, ostensibly in protest at the Final Award, but anecdote suggests he was looking for an excuse to quit.

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April 1999–November 2003: Siniša Kisić, SPRS. Kisić was initially appointed by the RS Brčko Assembly, after Reljić’s resignation. He cooperated closely with Farrand who appointed him to be the first mayor of Brčko District in March 2000. He remained in office until removed by Acting Supervisor Sontheim in November 2003 after being indicted for corruption. November 2003–March 2005: Branko Damjanac, SPRS. Damjanac was appointed by Sontheim to replace Kisić, whom Sontheim had removed. Damjanac was moderate and ineffective, holding the fort during the District elections in October 2004. March 2005–February 2009: Mirsad Đapo, SDP. Đapo, the first post-war Bosniac mayor, was appointed by a coalition of SDP, SBiH, HDZ, HSS, SNSD and SPRS councillors, and two SDA councillors who had been bribed to vote in his favour. He therefore barely acquired the requisite majority of 18 of 29 votes in the Assembly. February 2009–present: Dragan Pajić, SNSD. Pajić was hitherto politically unknown and represented a Serb party comparatively weak in Brčko politics. He was selected as a compromise candidate after pressure from the Supervisor’s office that had informally vetoed the two most successful candidates in Brčko’s October 2008 elections.

NOTES AND REFERENCES

Note: All website references were last checked on 24 October 2008. 1 2 3 4 5 6 7

1 2

Preface Bosnian Muslims have, since the war, described themselves as ‘Bosniacs’, to give themselves an ethnic identity distinct from their religious faith. This stands in parallel to Bosnian Croats, who are Catholics, and Bosnian Serbs, who are orthodox Christians. The political system is described in outline in Chapter Two. The thirteen prime ministers are one for each of two Entities, one for each of ten cantons within the Federation (one of the Entities) and one for the state. The state has three presidents, one from each principal ethnic group. Each Entity also has a President. The Mayor of Brčko District. His status is described in detail in this book. Each canton, each Entity, Brčko District and the state each have their own legislatures, in each case with powers far broader than a typical municipal legislature. Multiple municipal legislatures exist in addition to these fourteen. Each Entity has its own Constitutional Court, and the state has a Constitutional Court as well. The Federation of Bosnia and Herzegovina and Republika Srpska are the names of Bosnia’s two ‘Entities’, the principal sub-sovereign political units within Bosnia. They are introduced in Chapter Two. 1 Building States See Helman and Ratner (1993) for one of the first occasions on which the language of ‘failed states’ was used. Just a few examples will suffice. Reynal-Querol (2002) conducts some sophisticated regression analysis to reach the unremarkable conclusion that religious and ethnic differences are important causes of civil wars. Walter (1999) advances the theoretical proposition that external enforcement by way of international intervention can break the prisoner’s dilemma that renders it otherwise difficult to make civil war peace agreements sustainable, and reinforces the theory with a case study of Mozambique for which a peace agreement ending its civil war was signed in 1992. Hartzell et al. (2001) survey a variety of civil war peace settlements and conclude that they are more durable if the country has a democratic tradition, the conflict was of low intensity and third party intervention provides security assurances. Doyle and Sambanis (2000) reach similar conclusions, and also opine that ethnic civil wars are harder to resolve than ideological ones. This is a theme that will be returned to later in this chapter.

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The Carrington–Cutilieiro plan of September 1991 was a pre-war plan for federalisation and partition of Bosnia. It was accepted by the Bosnian Serbs, but the Bosniacs (Bosnian Muslims) rejected it, apparently on the recommendation of the US Government (Owen 1996). It would have given the Bosniacs a better deal than that they eventually obtained under the Dayton Peace Accords, and without a war. The three subsequent failed plans, the Vance–Owen plan (EU), the Owen–Stoltenberg plan (EU) and the Contact Group plan (US-led) are mentioned in Chapter Two. The Contact Group plan was subsequently developed into the Dayton Peace Accords, the successful plan that ended the war. 4 The real problem in each case may have been a lack of competence in execution of the peacekeeping mission, or a failure of coordination between interested major powers, which no level of policy analysis can rectify. 5 The United Nations likes to describe its peacekeeping missions as ‘completed’, and this is the official status of the peacekeeping missions to Cambodia, Guatemala, Sierra Leone and East Timor. However, when a peacekeeping mission officially ends it is generally replaced with a variety of other UN missions acting under broad, open-ended mandates, and this has happened in each of these four countries, where the UN presence is in each case larger than ever. Cambodia is just one good case in point. As of October 2007 there are 21 different UN agencies operating in Cambodia, not including the development banks or the IMF. 6 The principal proponents of this approach are the World Bank, the Asian Development Bank, the European Bank for Reconstruction and Development, the African Development Bank and the Inter-American Development Bank. These institutions have all expanded their activities beyond the conventional areas in which they used to operate (generally infrastructure and projects) and now seek to lend countries funds to pursue state-building projects under the broad umbrella title of ‘institution building’. These include ‘public sector governance reform’, ‘legal and judicial reform’, regulatory reform and the like. The United Nations Development Programme has adopted much the same approach. 7 See e.g. Fukuyama (2005). 8 Paris (2004) traces the development of this type of theory in detail. 9 One illustration is appropriate of how international administrators of Kosovo unthinkingly adopted Bosnian models of international intervention. A system of anonymous common vehicle licence plates was introduced in Kosovo, much as it was in Bosnia. The licence plates look almost identical to those in Bosnia. The aim was to promote freedom of movement by all people even into a territory in which the other group predominated. But whereas in Bosnia this reform was a great success, in Kosovo it did not work. This was because the Kosovan territory in which Serbs predominate is mostly adjacent to Serbia proper, and there is no effective police force operating in that part of Kosovo. Unlike Bosnian Serbs, Kosovar Serbs have no interest in travelling to the rest of Kosovo, and thus they either register their cars with Serbian licence plates in the Serbian city of Novi Pazar (near the border with Kosovo) or they drive around Serb-dominated northern Kosovo without any licence plates at all. In other words, Kosovar common licence plates are for the most part used only by Kosovar Albanians. Thus the reform did not achieve the desired effect of masking the ethnic identity of the owner of a vehicle in Kosovo. 10 See e.g. Paris (2004); Barnett (2006). 11 In this author’s view, both counterexamples are wrong. Upon independence, the United States inherited its institutions from its prior colonial overlord, Great Britain. It cannot therefore be said that the political system of the USA was created in an institutional vacuum. It is true that the federal system of government enshrined in the US constitution was entirely new. But it took several decades for that system to mature into

NOTES AND REFERENCES

12

13 14 15 16

17

18 19

20 21

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a fully functioning system of division of power between states and federal government. The first constitution of the United States, the Articles of Confederation (1777), was scrapped only eleven years after it was enacted. It is quite arguable that the relationship between the states and federal government only became fully apparent after the conclusion of the American Civil War in 1865 confirmed that states cannot secede from the Union. France is slightly more complicated, because the French Revolution (1789) represented a dramatic and unprecedented break with the past constitutional order. But post-revolutionary France can hardly be described as a liberal democracy. Indeed France was run off and on as a totalitarian state of various kinds until 1848. Political instability prevailed in France for decades even after that. Institution-destroying would be a more apposite description. One of the first acts of the CPA was to abolish all Iraq’s security, police and defence forces. It is thought that this was a direct cause of the descent into factional violence the country subsequently experienced. For more detail see Chapter Nine. This is a theme explored in a broader context in Krasner (2004). The principal academic proponent of partition theory is Chaim Kaufmann: see Kaufmann (1996) and Kaufmann (1998). For a more detailed overview of the partition of India, see Chester (2002). At the time of writing modest progress had been achieved in negotiations between Greek and Turkish Cypriot governments. In March 2008 an agreement was reached to restart talks on unifying the island, stalled since Greek Cypriots rejected a unification plan in an April 2004 referendum held just before Cyprus joined the EU. In April 2008 the first tangible result of the talks emerged, being the reopening of a crossing point in the centre of the divided capital Nicosia. Andorra, Liechtenstein, Malta, Monaco, San Marino, Montenegro, Luxembourg and Cyprus. Not included in this list is the Vatican City, an arrangement so unusual that it stands in a class of its own. There are also a number of juridically independent microstates in Europe that are not internationally recognised. For example, the Isle of Man is not part of the United Kingdom for the purposes of British law, although it is treated as such for the purposes of international law. Jersey and Guernsey, islands in the English Channel, have a distinct but similar status. For an intriguing analysis of the economic arguments for and against small nations, and the economic forces affecting the break-up and amalgamation of nations, see Alesina and Spolaore (2003). Sambanis (2000). The principal empirical counterexample used against partition theory is Israel and Palestine; the argument goes that separating the two sides into mono-ethnic mini-states created far more problems, grievances and resentments than it solved. The post-independence history of Israel is extremely complex, and it is difficult to say whether Israelis and Palestinians would have been better or worse off had the preindependence state of Palestine remained united after 1947, or what the international community would have had to do to procure that result, or whether it was politically realistic to achieve that result in the immediate aftermath of World War II. In any event, it is not the purpose of this book to assess the empirical arguments for and against partition theory; the aim is only to survey the contours of the debate, so that the discussion of post-war Bosnia in the succeeding chapters may be illuminated. See Haas (1990). Sun Tzu, Thucydides, Machiavelli, Hobbes, Bismarck and von Clausewitz have all, at one time or another, been described as realists. All they really have in common is a thoroughgoing cynicism about the motives of politicians and states’ pursuit of foreign policy. Bismarck’s phrase ‘the balance of power’ came to characterise the realist approach to international relations. ‘Classical realism’, a movement that developed in

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American universities in the aftermath of World War II, was an attempt to create a general theory of states’ self-interest in their relations with one another. Its most prominent adherents included E.H. Carr and Hans Morgenthau. ‘Neo-realism’, associated with writers such as Kenneth Waltz and John Mearsheimer, seeks to preserve the central realist thesis in the face of extended international cooperation by exploring the theoretical literature on structure and agency. To the extent international organisations do things that do not reflect the balance of interests of their founders, the reason is a failure of agency: they develop to such a level of bureaucratic sophistication and specialist knowledge that they are no longer under the de facto control of their principals. This theory comes remarkably close to the constructivist thesis, described later in this chapter. So-called ‘neo-classical realism’ explores the theoretical relationship between states’ foreign policy decisions and individual domestic politicians’ incentives. Liberalism harbours a similar proliferation of variants. ‘Liberal institutionalism’ focuses upon the mutual benefits of economic cooperation and maintaining peace that international organisations promote. ‘Neo-liberalism’ (a phrase often associated with the political scientist Robert Keohane) accepts the premise of realism that states are principally selfinterested, but insists that they can nonetheless cooperate to achieve common goals when their interests are aligned. 22 For a modern exegesis of realism in international relations see Waltz (1979). 23 The label ‘constructivism’ is used for convenience. It is not universally embraced and is a recent creation. It derives from the title of an essay by Alexander Wendt, entitled ‘Anarchy is What States Make of It: The Social Construction of Power Politics’ (Wendt 1992). It is also associated with Michael Barnett (Barnett 2006). 24 Robert Keohane, an advocate of ‘neo-liberalism’, stresses the importance of states being ‘incentive compatible’ if they are to come together to form successful international organisations (Keohane 1984). Using this vocabulary, we might aver that even in the early days of post-war peace-building the relevant international actors’ interests in postwar reconstruction of Bosnia were only minimally incentive compatible. After international media attention in Bosnia died down and a number of personally highly committed individuals (such as Richard Holbrooke and Carl Bildt, senior US and EU Dayton negotiators respectively and introduced in Chapter Two) had moved on, there were minimal incentives on the part of any states to engage seriously with Bosnia. Thus OHR went the way it did. 1 2

3

4

2 Bosnia and Brčko The Bosnian church was accused of Patarene, Catharist and Bogomil heresies. The Inquisition accused it of dualism. Its adherents denied the doctrine of the trinity and repudiated the cross as a liturgical symbol. Zagreb is the capital of Croatia. Banja Luka is a city of some 200,000 people in north western Bosnia that became the de facto Bosnian Serb capital after the 1992–1995 war. Sarajevo is the capital of Bosnia and Herzegovina. Cetinje is a hilltop town in Montenegro. It served as the capital of Montenegro until 1918. Bosnia’s historical Jewish population is often forgotten in the endless ethnic rivalries between Bosniacs, Croats and Serbs. Jews first arrived in Bosnia in the sixteenth century. In 1941, Bosnia was home to approximately 14,000 Jews. By 1945, only some 4,000 remained. The Israeli government airlifted 2,000 Jews out of Bosnia in the early days of the 1992–1995 war. Current estimates are that Bosnia’s Jewish population numbers only 500. Tito was born in the Croatian village of Kumrovec on the border with Slovenia. His father was Croatian and his mother Slovenian.

NOTES AND REFERENCES 5

6 7 8

9 10 11 12 13 14 15 16 17

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The Tito-era policy of ‘brotherhood and unity’ (bratstvo i jedinstvo) punished open expressions of national identity. Public statements about the position of one national group in comparison to another were singled out for particular persecution. In 1971, Franjo Tuđman, subsequently to become the first President of independent Croatia, was imprisoned for two years for questioning the number of victims of the Ustaša in the Word War II Jasenovac concentration camp. Alija Izetbegović, subsequently wartime President of Bosnia, was sentenced to 14 years’ imprisonment in 1983 for contravening the brotherhood and unity policy by promoting an Islamic state, but was pardoned in 1988. The preceding details are taken from BDDA (2002), pages 16–18. These statistics are provided courtesy of OHR, and are available on its website at http://www.ohr.int/ohr-offices/brcko/history/default.asp?content_id=5530 The phrase Bantustan was first coined in South Africa in the 1940s, referring to territory set aside for black inhabitants as part of the policy of apartheid. It is sometimes used in contemporary international relations to describe the practice of separating off a minority population into unconnected ghettos, to deprive them of statehood. For a one-sided but well-researched account of wartime Brčko, see Kadrić (1999). For a survey of the available statistics on population displacement within the Brčko area during the war, see ICG (2003) section II. The full text of the DPA is on the OHR website (OHR 1995b). Conscociationalism is associated with the American political theorist Arend Lijphart. For his seminal essay on the subject see Lijphart (1969). For a detailed survey of the consociational features of the Bosnian constitution, see Woelk (2004). Annex 8 to the DPA. Annex 9 to the DPA. Cessation of hostilities, redeployment of military forces, prisoner exchanges and similar matters were all dealt with in Annex 1A to the DPA. Articles VI to VIII of Annex 1A to the DPA. Annex 10 to the DPA. Article I(2) of Annex 10 to the DPA. Note in particular the language, ‘The parties request’. Does this not imply that the request could be withdrawn? How then did the High Representative transform himself into a dictator above the country’s domestic officials, with de facto authority to determine the length of his own mandate? Why could one of the parties to the DPA just decide they had had enough of him and withdraw their request, whereupon his office would be de jure legally dissolved? See Chapter Four for an account of how the High Representative’s office actually developed. Article II.1 of Annex 10 to the DPA. Article III of Annex 10 to the DPA. The United Nations International Commission for Trade Law drafted model rules for the conduct of international arbitrations in 1976. They are commonly incorporated into arbitration agreements, as they were here. Administration of justice was confined to the Entities until 2002, when the State Court was established: see Chapter Six. There was a state Constitutional Court, but it started operating only in May 1997 and was insufficiently robust to tackle a dispute of this magnitude. In any event, the issue was not of a constitutional nature, for while the Dayton Constitution recognises the Entities it is silent on their territory and boundaries. The legal doctrine of sovereign immunity, restricting the circumstances in which a state may be a defendant to court proceedings, exists in one form or another in most legal systems. Agreements to arbitrate a dispute involving a state are one way of avoiding complications the doctrine generates.

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23 This is a point implicitly recognised by the Tribunal in its first ruling, dated 14 February 1997 (ILM 1997): see paragraphs 76 to 80, which opine that the Federation cannot ground a claim to the Brčko territory upon an allegation of violation by the RS of the lawful sovereignty of Bosnia and Herzegovina, because the Federation is a sub-sovereign unit of Bosnia. 24 In footnote 45 to the tribunal’s First Award, the Presiding Arbitrator Owen does a reasonable job of arguing that equity is a recognised principle of international law, although he does so citing only one case precedent, an arbitration between Great Britain and the United States in which all the lawyers and arbitrators were trained in the common law, and citing one English legal textbook on international law. His conclusion is that reference to ‘equity’ in international law allows departure from the strict principles of law and may instead refer to ‘general considerations of justice, equity and right dealing’, etc. Given that he drafted the arbitration clause on which he subsequently ruled, one might take the view that his interpretation of what he meant by his words should be treated as canonical. 25 Article 33 of the 1976 UNCITRAL Rules; Article 38 of the Statute of the International Court of Justice. 26 No official translation of the Dayton Constitution or the Dayton Peace Accords into the local languages of Bosnia and Herzegovina exists. 27 See Articles IV(1) and IV(2) of Annex 2 to the DPA. 28 See Article II of Annex 2 to the DPA. 29 See Copeland (1999) p.3099, which suggests that institution of a ‘Supervisor’ rendered the First Award susceptible to challenge as a nullity on the ground that the tribunal exceeded its jurisdiction. Presumably the argument would be that supervision concerns enforcement of the tribunal’s orders rather than determination of the territory’s status; the contrary argument would be that the status of the territory on which the tribunal decided was to be that of an indefinite international protectorate. The question is academic, as neither side in the event did challenge the award as a nullity before any court. 30 See e.g. Copeland (1999). 1

2 3 4 5 6 7

3 The Tribunal’s First Award The first state institution to be formally established was the presidency. In elections in September 1996, Momčilo Krajišnik, wartime Bosnian Serb leader Radovan Karadžić’s deputy, was elected as the Serb member of the presidency, along with Alija Izetbegović (Bosniac) and Krešimir Zubak (Croat). The Presidency achieved very little and had trouble even meeting, not managing to appoint ambassadors until September 1997. The parliament rarely met. The Constitutional Court and the Central Bank were not established until August 1997. For details of the refugee returns process in post-war Bosnia, see generally Dahlman and Tuathail (2004). Paragraph 3 of the award of the arbitration award of the Tribunal for the Dispute over the Inter-Entity Boundary in the Brčko Area, dated 14 February 1997 (the First Award) (ILM 1997). For full details of the early procedural history, see paragraphs 7 to 27 of the First Award. This allegation is made in Kadrić (1999). There seems to be no direct witness evidence in its favour; the circumstantial evidence is that bodies were taken into the factory and were never subsequently found. Paragraph 53 of the Tribunal’s First Award (ILM 1997). The border itself is in Federation territory, in Orašje canton (a predominantly Croat area).

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The essence of the Federation’s arguments is set out in paragraphs 58 to 70 of the First Award, the RS’s arguments are summarised in paragraphs 30 and 70 to 73 of the First Award. For further details of those submissions, see Baros (1998). See paragraph 68 of the First Award. This point is not without force. In essence the argument is that the Constitution assigns all powers of governance to either the state or the Entities; there is therefore no room for an international official to have powers of governance. If valid, this argument would apply equally to the High Representative’s subsequent adoption of vast powers of governance: see Chapter Four. The argument highlights the point that the system of international government developed in post-war Bosnia sat above the Dayton Constitution and, indeed, overrode it where the two were inconsistent. For an extended attack upon the Tribunal’s departure from the ‘principle of consensuality’ – the notion that an arbitration tribunal cannot adopt a jurisdiction or investigation beyond the scope of that the parties agree to give it – see Baros (1998). Paragraphs 34 and 37 to 39 of the First Award (ILM 1997). See e.g. Jennings & Watts (1992); Dugard (1987); Brownlie (2003). First Award, paragraph 82. Third recital to the GFAP. See paragraph 84 of the First Award. Article I(4) of the BiH Constitution, itself being Annex 4 to the DPA. The right of returns for all refugees and displaced persons is provided for in Article I(1) of Annex 7 to the DPA, which states: ‘All refugees and displaced persons have the right freely to return to their homes of origin. They shall have the right to have restored to them property of which they were deprived during the course of hostilities since 1991 and to be compensated for any property that cannot be restored to them…The Parties confirm that they will accept the return of such persons who have left their territory…’. See, amongst other provisions, Annex 10 to the DPA (entitled ‘Agreement on Civilian Implementation of the Peace Settlement’), discussed further in Chapter Four, and Articles I, V, VI and VIII of Annex 1A to the DPA (providing for military supervision and enforcement by IFOR). Paragraph 104.I.B(1) of the First Award. OHR (2007e). For the text of the revised Statute as of 2 February 2007, see OHR (2007q). Paragraph 104.I.B(3) to (9) of the First Award. Annex 9 to the DPA, entitled ‘Agreement on Establishment of Bosnia and Herzegovina public corporations’, provides that the parties ‘hereby establish a Bosnia and Herzegovina Transportation Corporation’ to ‘organize and operate transportation facilities, such as…ports’ (Article II.1). The anticipated state corporation was never established. There are two ports in Bosnia. At the time of writing the Brčko port is run by a District public corporation, the port in Neum by the cantonal government. Article III.1(c) of the Constitution provides that ‘customs policy’ shall be ‘the responsibility’ of the state. However, this provision was not implemented until 2004, after the indirect taxation authority was established: see Chapter Seven. Prior to then, the Entities and the District administered their own customs policies and border controls. Paragraph 104.II.A of the First Award. Paragraph 104.II.B of the First Award. Further reference to the possibility of the Tribunal making Brčko town a ‘special District…no longer within the exclusive political control of either Entity’ is contained in paragraph 103 of that award. In both cases the quoted text is from paragraph 83 of the First Award. Paragraph 3 of the Tribunal’s supplementary award of 15 March 1998. Paragraph 30 of the First Award, and footnote 8 thereto.

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29 The precedents Owen cites in paragraph 30 of the First Award are Saghi v. Iran, Award No. ITL66-298-2, 14 Iran-US C.T.R.; Stephen Schwebel, International Arbitration: Three Salient Problems 279 (1987); Interpretation of Peace Treaties with Bulgaria, Hungary and Romania (Second Phase) 1950 I.C.J. Rep. 221, 229; and Mixed Claims Commission between United States and Germany, Opinions and Decisions in Sabotage Cases (15 June and 30 October 1939), 20. They do not merit individual analysis, all dealing with the same issue: 2-1 majority decisions of arbitrators. 30 For more detail see Baros (1998) 242 and footnote 45. 31 Private correspondence with the author in December 2007, quoted with permission. 32 The chairman of a tribunal must usually be granted express authority in the arbitration agreement to do this, in which case he or she is sometimes called an ‘umpire’, making a decision only if the other members of the tribunal cannot agree. 33 Paragraph 104.I.B of the First Award. 34 Paragraph 37 of the Final Award 4 The Beginnings of Supervision Paragraph 104.I.B of the First Award. What power did the tribunal have to direct the High Representative to do anything? The High Representative was not a party to the arbitration agreement. 2 Notorious examples, that may still be visited, include the corridors of the Hotel Jelena and the passage between the town library and the Hotel Posavina. 3 Much has already been written about the returns process, which was not completed in Brčko until 2004. For further details see Dahlman and Tuathail (2006), 659 et seq. 4 Farrand’s very first formal act was described as a decision to establish a return procedure (OHR 1997b) and was issued shortly after he arrived, on 24 April 1997. However, after this initial decision, all formal acts of the Supervisor were described as ‘Supervisory Orders’, the first of which, also relating to returns, was dated 11 June 1997 (OHR 1997c). 5 Under the terms of Farrand’s order, the UN IPTF would laminate Federation ID cards with an OHR plastic cover when a non-Serb refugee returned to his pre-war Brčko home north of the IEBL. 6 Griffiths (1998) downplays the success of OHR North’s returns policy in the early stages of supervision. 7 Supervisory Order on multi-ethnic administration in the RS municipality of Brčko dated 10 October 1997 (OHR 1997e), and the addenda thereto dated 13 October 1997 (OHR 1997f) and 15 November 1997 (OHR 1997g). 8 Bill Farrand has described these events to the author in the following terms. ‘Zlatko Lagumdžija, head of the SDP party…got word through to me somehow that he and eighty-plus of his party members were on the road headed north from Sarajevo to Brčko in two buses…Lagumdžija and his entourage expected to arrive at the entrance gate to Camp McGovern [which at the time was in the middle of the road from the Federation to Brčko] around noon…The Bosniacs were throwing down the gauntlet: testing my readiness to permit them to come to the Brčko grad within weeks of arrival…SFOR was greatly discomfited, to use the mildest applicable term, by my decision to permit the…buses…to enter the grad…SFOR helicopters hovered overhead but refused to intervene in the mayhem that followed. It was a white knuckle day all round. Blessedly, there was no loss of life.’ 9 OHR (1997j) and OHR (1997k). 10 OHR (1997l). 1

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11 The formal mandate of the Brčko IPTF unit covered an area slightly larger than the Brčko opština, includin Orašje, in the Federation to the north west, and Bijeljina, in the RS to the east, although its work was concentrated in Brčko itself. 12 Pero Androšević was found to have beaten and tortured suspects in a murder investigation; Pero Djurić was found to have attempted to illegally evict occupants of abandoned housing belonging to refugees before the occupants had yet been assigned new premises. 13 See ICG (1998b) for a survey of the arguments about the early post-war Bosnia elections. 14 The account that follows this endnote in the main text is set out in greater detail in Griffiths (1998) section 4.3. Griffiths worked in OHR Brčko at the time. His account is confirmed by a staff member of OSCE Brčko, who commented to the author that the instruction to find the error came directly from Frowick. However, the issue is hotly contested. In the course of research for this book, Sophie Lagueny, an international staff member of OSCE Brčko, denied the Griffiths version and gave the following account (quoted with permission), which also has the support of Bill Farrand: ‘I was responsible for sending completed registration forms to [OSCE] Sarajevo on a weekly basis. Each batch was to be sent with a cover page including the first and last number of the registration forms included in it. We all know that the first registration exercise in Brčko was invalidated due to major fraud and that we had to do it all over again. Unfortunately, I made a mistake in the date on the cover page of one of the batches. When Sarajevo received it, they noticed that the date was prior to the beginning of the second registration exercise, [and] therefore assumed it was part of the first one and did not process the forms in that batch. All of the 2,600 Serb voters whose registration forms were in the batch…were therefore missing from the polling station lists. The Serb political parties of course noticed it and…accus[ed] OSCE of trying to disenfranchise their voters and consequently threatened to boycott the elections…It took a trip from the Brčko heads of OHR and OSCE to Sarajevo with their solid proofs and extensive explanations about the mistake made to convince the National Elections Commission to reinstate those voters…and avoid a major political crisis.’ 15 There is some debate about whether the Partisans were genuinely multi-ethnic or dominated by Serbs, albeit of a less nationalistic and more ideologically motivated brand than the Četniks. See Roberts (1987). 16 The allegiances of Bosnia’s Muslims in World War II were split. Some supported the Ustaša against the Serbs. Some fought for the Partisans against the Ustaša. The extent to which Muslims allied themselves with one or the other side is the subject of impassioned debate well beyond the scope of this work. However, the slaughter of Bosnian Muslims by the Četniks is not seriously disputable: see e.g. Malcolm (1994). 17 OHR (1997i). 18 ‘Hizbullah’ was found scrawled on the explosive device, but it was misspelled. 19 Article I.2 of Annex 10 to the DPA. 20 Article II.1 of Annex 10 to the DPA contains a list of the High Representative’s ‘powers’. They include ‘monitor[ing] implementation of the peace settlement’; ‘maintain[ing] close contact with the Parties to promote their full compliance…and a high level of cooperation between them…’; ‘coordinat[ing] activities of the civilian organizations and agencies’; ‘participat[ing] in meetings of donor organizations’; ‘report[ing] periodically…to the United Nations…’ and ‘provid[ing] guidance to…the Commissioner of the International Police Task Force’. 21 The PIC purported to authorise unspecified action by the High Representative against the media in its ‘Sintra’ declaration, dated 30 May 1997 (OHR 1997m), paragraph 70 of which cryptically reads: ‘The Steering Board is concerned that the media has not done

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enough to promote freedom of expression and reconciliation. It declared that the High Representative has the right to curtail or suspend any media network or programme whose output is in persistent and blatant contravention of either the spirit or the letter of the Peace Agreement.’ How media broadcasts could contravene the peace agreement was not explained; of course what the PIC really meant was that media broadcasts expressing opposition to the DPA could be curtailed. However, that raises the question of how banning the expression of a certain point of view could promote the stated ideal of freedom of expression. The declaration does not explain from where the PIC found legal authority to declare that the High Representative had any such right. Paragraph 37 of the Final Award of the Brčko Arbitration Tribunal provides that Supervision shall continue until the PIC decides to terminate it. This is the only formal legal power the PIC has which it has not granted to itself. The existence of the PIC is acknowledged in a paragraph of the preamble to UN Security Council Resolution 1031 adopted on 15 December 1995, although that cannot in itself vest the PIC with any legal authorities. Paragraph X.2 of the Conclusions of the Bonn Peace Implementation Conference held on 9 and 10 December 1997. This is particularly bizarre. If paragraph (b) of the Bonn declaration was meant to give the High Representative legislative authority, then why does it state that decisions made under it will ‘remain in force until the Presidency or Council of Ministers had adopted a decision…on the issue concerned’? The Presidency and the Council of Ministers are executive, not legislative authorities, suggesting that the power conferred upon the High Representative by paragraph (b) is intended to be executive rather than legislative in nature because it is an interim measure replacing an executive authority. Things changed markedly after the end of 2005 as the new High Representative, Christian Schwarz-Schilling, appointed with effect from 31 January 2006, had expressly disclaimed the value of dismissing officials or imposing laws and made very few such impositions. His successor, Miroslav Lajčák (July 2007–March 2009), had a mixed record: he committed some of the most egregious human rights abuses against individuals, but confined the objects of his actions to a relatively narrow scope of subjects, being persons he alleged were supporting war crimes suspects Ratko Mladić and Radovan Karadzić. For more details see Chapter Eight. Article II.2 of the Constitution of Bosnia and Herzegovina. Conspiracy theories about Bosnia’s unaccountable domestic and international institutions are often grounded in fact, but the reason for this delay, which is far too long to ascribe to ordinary Balkan incompetence, is truly baffling. Several people at the time speculated that the delay was engineered to pick a politically more suitable occasion to release such a momentous decision, when the international community backlash against the Constitutional Court might be of a lesser order. But by March 2007, a February 2007 decision to extend OHR beyond the previously scheduled closure date of June 2007 had just been made. By this time Christian Schwarz-Schilling, the passive High Representative who had publicly spoken out against international community removals and was known to be sympathetic to the philosophy underlying the Constitutional Court’s decision, was known to be leaving shortly and was weak, thus making it easier for his more aggressive Principal Deputy Raffi Gregorian to pressurise him into signing a decision overruling the Constitutional Court. In July 2006, none of these considerations applied: a closure date for OHR had been set, Schwarz-Schilling’s position was still strong and Gregorian was not yet PDHR. The Constitutional Court would have been far likelier to ‘get away with’ its decision in July 2006. Another conspiracy theory is that the Constitutional Court was in cahoots with ESI, the NGO backed by Schwarz-Schilling, that had issued an article condemning lack of due process in IC removals just before the

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Constitutional Court’s decision was published (ESI 2007a), and then issued another follow-up article praising the Court’s decision barely a week after it was published (ESI 2007b). Schwarz-Schilling’s reluctance was expressed over a dinner in Brčko on the evening of 7 March 2007. He said that he sympathised with the Constitutional Court’s decision and considered it manifestly unfair that people in the position of Mr Kalinić had no right of review of the decisions removing them from office. Schwarz-Schilling’s lack of support for OHR removals without due process was also made clear in a report of the European Stability Initiative dated 12 March 2007 (ESI 2007b), an NGO that Schwarz-Schilling stood behind and could thus be assumed to represent his views accurately. The pressure exerted upon him that would make him sign a decision on 23 March 2007 exactly contrary to the sentiments he had previously expressed, can only be imagined. In the ultimate absurdity, one of Bremer’s first orders, Coalition Provisional Authority Regulation Number 1, predated Resolution 1483 (Regulation 1 was dated 16 May 2003 whereas Resolution 1483 was dated 22 May 2003) but still referred to it as the authority for its enactment. See CPA 2003a. Paragraph 7 of the Tribunal’s supplemental award dated 15 March 1998 (OHR 1998j). Paragraph 17 of the Supplemental Award. Paragraph 19 of the Supplemental Award. Paragraphs 9 to 11 of the Supplemental Award. Paragraph 11 of the Supplemental Award. Paragraph 20 of the Supplemental Award. Paragraph 21 of the Supplemental Award. Paragraph 26 of the Supplemental Award provided that until such a request, ‘the IEBL within the pre-war Brčko opština shall remain unchanged’ and that any such request may be made between 15 November 1998 and 15 January 1999. Paragraph 24 of the Supplemental Award. Paragraph 25 of the Supplemental Award. Endnote 2 to the Supplemental Award. During the course of 1998, the High Representative dismissed six people and imposed six laws. See http://www.ohr.int/decisions/archive.asp?m=&yr=1998 for a list of all Decisions of the High Representative issued in 1998. Supervisory Order dated 3 December 1998 (OHR 1998h), dismissing councillor Franjo Čančarević for violating a prior Supervisory Order. Paragraph 27.1.b of the Supplemental Award. The quoted text is from paragraph 20 of the Supplemental Award. 5 The ‘Final Award’ See paragraph 4 of the Final Award of 5 March 1999 (OHR 1999a). There was a minority of moderate Federation officials, including the then Federation President Ejup Ganić, who in private welcomed the Final Award as the best result the Federation could reasonably hope for. RSNA (Republika Srpska National Assembly) resolution on the decision of the Presiding Arbitrator of the Arbitral Tribunal on the disputed part of the IEBL in the Brčko area, dated 7 March 1999. Paragraphs 9 and 34 (OHR 1999a). For a discussion of the political context to these three events, see ICG (1999a). The annex was subsequently revised after the tribunal invited, and received, suggestions from the parties for improvements to it. The revised Annex to the Final Award was issued on 18 August 1999 and makes a number of significant improvements. Paragraph 4 of the Final Award.

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The quoted text is from paragraphs 6 and 7 of the Final Award. Nobody interviewed who was working for OHR at the time seems to recall where the decision to remove Poplasen emerged from. It was taken remarkably quickly. Might one speculate that High Representative Westendorp did something so dramatic on the day he knew the Final Award would be issued, merely to ensure he was not eclipsed by Owen, whose decision we know he opposed? Paragraph 9 of the Final Award. Paragraph 36 of the Final Award. The legal origins of this phrase are somewhat obscure. It is used in UN General Assembly Resolution 181 of 29 November 1947 calling for the partition of Palestine into Israeli and Palestinian states with the city of Jerusalem as a corpus separatum whose sovereignty is distinct from either of those states. (For more on this proposal, see later in this chapter.) Since then the phrase has been used to describe a number of similar earlier arrangements, such as the Free City/State of Fiume, which existed in various forms from 1719 to 1924. For more information see Ydit (1961). Paragraph 59 of the Final Award. Paragraphs 38 and 46 of the Final Award. Paragraph 36 of the Final Award. Paragraphs 40 to 42 of the Final Award. Paragraph 39 of the Final Award and paragraph 5 of the 18 August 1999 Annex to the Final Award. Paragraph 38 of the Final Award. Paragraphs 39 and 43 of the Final Award. Paragraph 46 of the Final Award. Paragraph 36 of the Final Award. Paragraph 9 of the 18 August 1999 Annex to the Final Award. Paragraph 2 of the 18 August 1999 Annex to the Final Award. Paragraph 4 of the 18 August 1999 Annex to the Final Award. Paragraph 5 of the 18 August 1999 Annex to the Final Award. Paragraph 7 of the 18 August 1999 Annex to the Final Award. Paragraph 8A of the 18 August 1999 Annex to the Final Award. Paragraph 8B of the 18 August 1999 Annex to the Final Award. Paragraph 11 of the 18 August 1999 Annex to the Final Award. Paragraph 12 of the 18 August 1999 Annex to the Final Award. Paragraph 67 of the Final Award. Similarly, paragraph 13 provides that the Tribunal shall ‘remain in existence’ until such a certification is made. The Entities did sign some agreements with the District in September and October 2000, on refugee returns, revenue sufficiency of the District, pensions and health insurance. But they were drafted in a hurry and were very unclear (and were never implemented). It was not clear what implementation they would have required, nor how they were to be enforced. They were never given legislative effect and were subsequently ignored by everyone. The purpose of signing them appeared to be political only: the international community could claim a victory from the chimera of Entity cooperation. Paragraphs 8 and 37 of the Final Award. It is proper here to acknowledge Ydit (1961), which contains a comprehensive survey of internationalised territories in the nineteenth and twentieth centuries and to which I am indebted in the survey of internationalised territories in this chapter. Ydit describes several instances of internationalised territories not mentioned here, due to their having relatively few similarities to Brčko District and correspondingly few lessons from which we can learn.

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35 In 1833, the Constitution of the Free City was changed so that senators (the principal Executive organ of the Free City) became appointed by the occupying powers; the approval of the Board of Delegates was required for each such appointment. Likewise, the Board of Delegates from that year started appointing Judges. See Ydit (1961) for more details. 36 Paragraph 37 of the Final Award. 37 This assumption was abandoned in the 2 February 2007 revised Statute (OHR 2007q). Article 1(6) of the revised Statute provides that the Final Award and all Supervisory Orders are integral components of the legal system of Brčko District, and override all inconsistent law. 38 Paragraphs 10 and 11 of the Final Award. 39 Paragraphs 58 to 60 of the Final Award. 40 Ydit (1961), Chapter 3.7. 6 Brčko’s Political and Economic Development under Supervision For a full narrative account of the process see Jeffrey (2006), p.215 et seq. USAID is an acronym standing for the United States Agency for International Development; it is the foreign aid branch of the United States government, responsible for managing projects using aid money from the US federal budget. It generally retains US consultancy firms to administer the projects, ensuring that much of the aid money granted returns to the US economy. 3 For details, see ICG (2003), p.14; for background see ICG (1999c), pp.3–8. 4 Fraudulent record-keeping in employment relationships due to excessively high taxes on employment contracts serves as a form of discrimination against foreign investors, because foreigners do not know how to perpetuate the necessary frauds, do not have the connections within the necessary government institutions to register the fraudulent paperwork, and may be subject to criminal penalties in their jurisdiction of origin for participating in frauds abroad; consider the Foreign Corrupt Practices Act of 1977, that outlaws US companies bribing foreign officials. The OECD has a 1997 Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, which provides that its signatory states are obliged to enact into domestic law offences of bribing foreign public officials. 5 Neo-institutional economics is a term usually used to denote a broad school of thought that considers the role of government and political and legal institutions in promoting or retarding economic growth. If certain types of institutions will promote economic growth, then the development economist should engineer those types of institution. Hence the rash of recent initiatives amongst development institutions for projects promoting ‘legal and judicial reform’, ‘public sector governance’, ‘democratisation’ and the like. 6 Instances of early dismissals included Hajrudin Zahirović, who was replaced as Head of the District Revenue Agency on 26 May 2000 (OHR 2000h), and Hasija Zejnilović, removed from the Position of Head of the Department for Education in the Brčko District Government on 21 March 2001 for retaining a company on a government contract with which she had family connections (OHR 2001b). 7 Paragraph 3 of the 18 August 1999 Annex. 8 Paragraph 4(2) of the 18 August 1999 Annex. 9 Paragraph 4(3) of the 18 August 1999 Annex. 10 Under Karnavas’s reforms, criminal trials must begin within 120 days of an indictment; a person may be detained for only 24 hours without charges being filed; sanctions are imposed on lawyers, witnesses and clients who fail to attend hearings; criminal plea 1 2

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bargains are permitted, to reduce caseloads; and where they allow an appeal, appeal courts may not remit a case to the first instance court but must issue a final decision. The power to appoint and dismiss Judges was subsequently transferred to the state High Judicial and Prosecutorial Council (HJPC); see Chapter Six. See in particular ICG (2000) page 19: ‘Systematic discrimination on the basis of ethnicity has been a factor of Bosnian justice since the war years. Rather than openly use ethnicity as grounds, the courts and governmental agencies often mask their prejudices in dubious rulings, or in unexplained delays in the procedure.’ See OHR (2001c). After the war almost all such employees were de facto redundant, as the companies had simply stopped operating during the war, or had been subverted to wartime aims and at the end of the war ceased functioning. In Russia the consequence of voucher privatisations was somewhat different: canny managers of the vast Soviet-era public companies persuaded employees issued with privatisation vouchers to yield control of their vouchers en masse to the managers, who thus acquired control of the companies and asset-stripped them, becoming overnight billionaires. Such was the rise of the Russian super-rich, who are now known as the ‘oligarchs’. For more details see Black et al. (2000). Presumably the reason this did not happen in Bosnia was that the post-war companies had no assets to strip. Henry Clarke, in private correspondence with the author (quoted with permission), has explained his decision to incorporate employee vouchers into District privatisations in the following terms. ‘Under the privatization laws of the state and the Entities, all citizens (whether employees or not) were issued vouchers in the RS and certificates in the Federation, for use in buying shares of privatized companies, or for use in buying shares in funds which would in turn decide which companies to invest in. Brčko residents were all citizens of one Entity or the other, so they were all entitled to and received either vouchers or certificates. Brčko residents were mainly inclined to invest them in Brčko companies, but they were not required to do so. I decided I could not justify refusing to accept them, so I accepted a GTZ recommendation to sell 67 per cent to a single buyer and reserve the rest of the shares for vouchers and certificates. This reduced the public’s shares in the resulting private company, but greatly increased the company’s chances for success (by giving full control to the private owner). My version was fiercely opposed for many months by the RS, probably because they wanted more control over Brčko companies; they alleged I was violating their voucher laws, and I pointed to the Final Award.’ See also UN Security Council Resolution 1088/1996 and a decision of the PIC on 4–5 December 1996. Much has already been written about the development of Arizona market by OHR Brčko, on account of its almost textbook transformation. See e.g. International Alert (2006); Feit and Morfit (2002); Scott and Murphy (2004). Save perhaps to promote the interests of Bosnian Croat oil cartels, which had significant political connections within the government of Croatia. The story is rather more complex than this suggests. Once the State Border Service was established, customs and excise revenues were paid into the ‘Single Account’, being the state account designated to receive all indirect taxation revenues and administered by the Indirect Taxation Authority, a state institution. The Indirect Taxation Authority would use the funds received into the Single Account to pay the expenses of running state institutions, and the balance would be redistributed to the two Entities and the District. From 1 January 2006, the ratios of these redistributions were supposed to be based upon the relative sizes of VAT receipts sourced from each of the three territories. The application of this mechanism precipitated a complaint by the District to the Brčko

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Tribunal that the Final Award was being violated by the Entities and the state; see Chapter Eight. 21 ‘U Brčkom prosjecna plata oko 690 maraka’, Oslobodjenje, 2 May 2003. For further details see International Crisis Group (2003), p.17. 1 2 3 4 5 6

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7 The Tide Begins to Turn against Brčko ICG (2003) pp.11, 12. This text is reproduced in both Karnavas (2001) and Karnavas (2003). See OHR (2002a), OHR (2002b), OHR (2002c). Final Award, paragraph 9. Case U–14/04, Terzić v. Federation of Bosnia and Herzegovina (‘Federation Turnover Tax’), CCBH (2004b). Each of these disputes was complex, and the details of the rulings upon them by the High Commissioner, the Council of the League of Nations and the Permanent Court of International Justice (the Court of the League of Nations) cannot be adequately summarised here. See Ydit (1961), Section 2, Chapter 5 for more details. The estimate of the number of fatalities in the Bosnian war is the subject of repeated debate and review. Initially it was asserted that the number of deaths exceeded 200,000, but that figure was subsequently revised significantly downwards. In June 2007 the Research and Documentation Centre, a Sarajevo NGO, published a list of 97,207 names of persons killed in the war, of which approximately 35 per cent were civilians and 65 per cent soldiers. Of the civilians, approximately 85 per cent were Bosniacs, 9 per cent Serbs and 5 per cent Croats; of the soldiers, approximately 54 per cent were Bosniacs, 36 per cent Serbs and 9.5 per cent Croats; combining both categories of fatality, approximately 65 per cent were Bosniacs, 25 per cent Serbs and 8 per cent Croats. See http://www.idc.org.ba. Manifold debates exist about the accuracy of these figures, but they have been subject to international evaluation. Tabeau and Bijak (2005) reach a similar figure for the total number of deaths. In April 2007, the RS sunk the police reform process over a piece of nomenclatural trivia. RS Prime Minister Dodik agreed to centralising police reform on the condition that the police operating in the RS kept the name ‘Republika Srpska Police’, knowing that Haris Silajdzić, nationalist Bosniac member of the State Presidency, would not accept this because he associated the name with wartime RS special policing units that committed war crimes against Bosniacs. High Representative Miroslav Lajčák (July 2007–March 2009) spent some months discussing the issue after he came into office. September 2007 involved a flurry of political activity under the guise of police reform discussions, but the Bosniac and Serb positions became ever more extreme and no intelligent outcome was reached. Enormous pressure was applied by OHR to the principal protagonists, Bosniac Member of the State Presidency Haris Silajdžić and prime minister of the RS Milorad Dodik, including threats of travel bans, bank account freezes, introduction of a visa requirement upon all BiH citizens for travel to Croatia and even removal of the two individuals from their public offices. Under the weight of this coercion, on 28 September 2007 Silajdžić and Dodik signed a ‘protocol’ on police reform as a stalling tactic. The protocol said virtually nothing that had not been agreed before, and because it was issued without consulting the other political parties was immediately rejected by everyone else. In December 2007 it was announced that a ‘declaration and action plan’ on Police reform had been adopted (OHR 2007r), but these documents were never made public. State legislation on the police was adopted on 16 April 2008, but it addressed none of the main issues at stake in the police reform discussions. Rather than centralise administration or budgets of the police, it created an organisation to ‘coordinate’ the work of the different police forces and provided that

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future police reforms would occur after further constitutional changes. Those constitutional changes would, of course, never come to pass. At the time of writing the police are managed in exactly the same way as they have been since the end of the war: by Entity and Canton. For example Reilly (2002), Horowitz (2003). Consociationalism is associated with American political theorist Arend Lijphart. See Lijphart (1969). Some Bosniacs and Croats (in the last few years an increasing number, as hostility to limited refugee returns has decreased) do live in the RS. But because the dominant RS political parties are exclusively Serb, it is unlikely any non-Serb would ever be appointed to a state position reserved to the RS. See the following provisions of the Constitution: Articles IV.1 (House of Peoples), IV.2 (House of Representatives), V.1 (Presidency), V.4 (Council of Ministers), VI.1 (Constitutional Court), IV.3.d to f (national interest vetoes). OHR (2002d), OHR (2002e) and OHR (2002f). For a survey of the criticisms of consociationalism see Horowitz (1999). Article 20(1) of the 2 February 2007 District Statute (OHR 2007r). Glas Srpske (2008) gives the following account of how vote-rigging using paid voters worked in the 2004 District elections. ‘[A] loyal member of a party enters a polling station first, takes a ballot paper, marks his choice, puts an invalid or copied ballot paper in the box and takes the valid ballot paper outside with him and delivers it to the paid voter. The voter then enters polling station, takes a new ballot paper, goes behind the screen, does not fill out the ballot paper, but he puts the already completed ballot paper in the box and takes the non-completed ballot paper out with him to deliver it to the man from the political party, who again fills out the ballot paper and hands it over to the next voter. The cycle repeats as long as there are paid voters left to vote …’. Two SDP councillors subsequently defected and became independent, so that by the time of the October 2008 elections it had only four councillors. This indicates the parlous nature of the coalition government eventually formed. Two members of the Bosnian Presidency telephoned the President of the Appellate Court and threatened him, telling him to overturn the Basic Court’s conviction of Jusufović. He refused. These figures are taken from the District budget for the respective years. Interestingly, following his first dismissal, Ismet Dedeić went to work for Italproject, the winning bidder on the contract to run Arizona market. Dedeić had proposed to Henry Clarke the idea of putting management of the market out to private tender, and was President of the Tender Commission. Hajrudin Jusufović, cousin of Munib and Head of the Department for Public Records. In addition to the orders mentioned, there were supervisory orders amending the Statute, dated 14 September 2005 (OHR 2005b); suspending adoption of illegal regulatory plans, dated 7 November 2005 (OHR 2005c); restructuring the Brčko District administration, dated 21 November 2005 (OHR 2005d); repealing the Socialist Republic of Bosnia and Herzegovina Law on Construction Land of 1986, dated 1 March 2006 (OHR 2006f); and mandating splitting the government’s urbanism department in two, to mitigate the effect of bad management, dated 16 August 2006 (OHR 2006g). For the explanation of why Johnson imposed these laws on the last day of her mandate, see Chapter Eight. Appointments made by the Supervisor in the post-election period included members of the Judicial Commission (OHR 2006j); Brčko District Coordinators in the Council of Ministers (OHR 2006k); the Chief of Police (OHR 2007b); and the District auditors (OHR 2007d).

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25 See the Supervisory Order amending the Statute of Brčko District dated 2 February 2007 (OHR 2007e); the Supervisory Order on urban planning dated 23 March 2007 (OHR 2007c); and a supervisory order imposing 300 pages of miscellaneous amendments to legislation to harmonise District law with the new Statute (OHR 2007f). 26 See Article 71 of the Statute as amended by Supervisory Order dated 2 February 2007 (OHR 2007e; OHR 2007q). 27 This telephone call took place in October 2005. In December 2005, Ashdown imposed legislation reducing the salaries of the judges of the Constitutional Court as part of a package of imposed laws harmonising judicial salaries countrywide (see Chapter Eight). This legislation (OHR 2005f) set the salaries of the international judges at the same level as the salaries of the domestic judges, whereas they had previously been substantially higher. It is difficult to encourage an international judge to work for the comparatively paltry salaries of domestic judges; after Ashdown’s laws, the salaries of the judges of the Constitutional Court were 4,200KM (approximately 2,100 Euros) per month net. The international judges interpreted this reduction in their salaries as Ashdown punishing them for refusing to back the dismissal of Tadić. 28 Zdravko Tolimir, the third most wanted, was captured on 31 May 2007. He is charged with command responsibility in the Srebrenica massacre, amongst other things. 29 The appellate panel decision was dated 11 September 2007 (Court of BiH 2007). The panel consisted of three national judges, in violation of the convention that every panel of the Court has at least one international judge. The reasons given in the judgment for allowing the appeal are that the first-instance verdict is ‘incomprehensible’ and ‘selfcontradictory’; it failed to ‘assess the credibility of contradictory evidence’; and ‘it failed to evaluate all presented evidence’: serious stuff. However, not a single instance of these failures is given in the judgment of the appeal court. No individual piece of evidence, nor any part of the text of the first-instance decision, is discussed. The Appellate Court identifies these exceedingly broad failures but gives no details of any kind, nor explains why they make the conviction unsafe. Its decision is quite devoid of real legal reasoning and is a sham. There seems little doubt that the decision was the consequence of invisible political pressure. 30 There is no such place as East Sarajevo. The easternmost suburbs of the city of Sarajevo are in Federation territory. ‘East Sarajevo’ is a Bosnian Serb euphemism for the village of Pale, the wartime capital of the RS and a mountain holiday resort about 25km north east of Sarajevo. The RS municipality in which Pale resides is called ‘East Sarajevo municipality’, and the suburbs of Sarajevo that now fall within RS territory are included within this municipality. But those suburbs are not to the east of Sarajevo; they are to the south and south-west. Any reference to ‘East Sarajevo’ is generally just a reference to the Bosnian Serb counterpart of a now Federation institution that before the war was located in Sarajevo. There is a ‘University of East Sarajevo’, an ‘East Sarajevo municipal Court’ and the like. Both these institutions are located in Pale. 31 Annex A to the agreement on succession issues between Bosnia and Herzegovina, the Republic of Croatia, the Republic of Macedonia, the Republic of Slovenia and the Federal Republic of Yugoslavia, dated 10 April 2001, dealt with the matter explicitly between the former Socialist Republics. But it did not address the issue of division of public property between sub-sovereign political units within each of the former Socialist Republics, now independent states. That would be a matter for the internal law of each state. 32 Paragraph 12 of the 18 August 1999 Annex to the Final Award states that ‘All public properties within the District shall be administered by the District Government, which shall have the authority, with the approval of the Supervisor, to privatize public property

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in accordance with applicable BiH law. No public property in the District may be disposed of except in accordance with BiH law and with the approval of the Supervisor.’ Article II.2 and II.3 of the Constitution of Bosnia and Herzegovina. Article VI.3.b of the Constitution of Bosnia and Herzegovina sets out the Court’s appellate jurisdiction, and confines to ‘issues under this Constitution arising out of a judgment of any other court in Bosnia and Herzegovina’. Costello–Roberts v. United Kingdom, 25 March 1993, Series A no. 247-C, p. 62, para. 40; Van der Hurk v. The Netherlands, 19 April 1994, Series A No. 288, Para. 47. The president of the Appellate Court of Brčko District, cited to the author the following Constitutional Court decisions that follow the same pattern: AP854/04 Vilkom; AP2367/05 Redžič; AP289/03 Pilić. Each of these cases has the following features in common: Bosniac plaintiff sues in Brčko Basic Court and wins, on dubious legal grounds; Appellate Court reverses; the first decision of the Constitutional Court overturns the District Appellate Court’s decision, but this decision is issued solely by a panel of (the same five) domestic judges and is not translated into English; the basis for the Constitutional Court’s first decision is that the Appellate Court has made an error of law that violates the right to a fair trial under the European Convention on Human Rights, but does not state what the error of law is and gives unclear remission instructions; the case is remitted to the Basic Court which again decides in favour of the plaintiff; the Appellate Court overturns again; the Constitutional Court then seises the case before the appellate procedure is completed or anyone has appealed to it; the Constitutional Court’s second decision purports to enforce the first Constitutional Court decision by ordering immediate enforcement of the second Basic Court decision; the second Constitutional Court decision is issued in plenary session, including the international judges, but due to the absence of a translation those judges do not understand the prior decision they are purporting to order enforcement of; the plaintiff’s attorney in each case is the same, the Bosniac Osman Mulahalilović. There is one other case which betrays the same features: AP1/05 Branković, although the plaintiff and his attorney are both Serb. Perhaps there is some small reassurance to be gained from the insight that this judicial misfeasance is, to a degree, ethnically blind. 8 The Decline of Supervision Article 14(1) of the Law on Court of Bosnia and Herzegovina (Court of BiH 2000). Between June 2002 and January 2006, Ashdown imposed no fewer than 33 state laws or amendments to state laws by High Representative’s decision, and also by High Representative’s decision proposed a further two draft laws to the State parliament with instructions to adopt them. At least as many again were enacted by the State parliament after having been written by OHR officials and introduced into the parliamentary procedure with a strong push by Ashdown. They were ‘foreign policy’, ‘foreign trade policy’, ‘customs policy’, ‘monetary policy’, ‘finances of the institutions and for the international obligations of Bosnia and Herzegovina’, ‘immigration, refugee, and asylum policy and regulation’, ‘international and inter-Entity criminal law enforcement, including relations with Interpol’, ‘regulation of Inter-Entity transportation’ and ‘air traffic control’. Some of the most glaring examples of laws without credible constitutional bases included the Law on Statistics (OHR 2002h), establishing a state statistics agency; the Law on Communications (OHR 2002i), providing that telecommunications services would be regulated by state institutions; and the law establishing state intelligence and security agencies (OHR 2003c). But there were many others. Multiple High Representative decisions enacted laws creating state-level criminal offences and a state-level police service to enforce those offences. Pressure was also brought by the High Repres-

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entative upon domestic institutions to enact state criminal laws that had been drafted by OHR or upon its initiative. Where this occurred, the legislation was typically enacted without serious debate about its constitutionality. Note also the exceptionally broad jurisdiction granted to the State Court by a decision of the High Representative (OHR 2003d), which provided that the Court would have jurisdiction over criminal offences defined in Entity and District legislation where those offences ‘may have…detrimental consequences to the economy of Bosnia and Herzegovina or may have other detrimental consequences to Bosnia and Herzegovina’. This could apply to virtually any moderately serious crime at all. Article III.5(a) of the Constitution. Indeed after Owen had replied to Ashdown on 21 April 2005, Ashdown wrote back to Owen on 4 May 2005, saying he ‘warmly welcomed’ Owen’s involvement and that he would ‘defer to [Owen’s] judgment as to what procedures should be followed’. Ashdown’s subsequent objection to Owen’s jurisdiction seems all the more preposterous after this letter, which effectively amounted to an acquiescence to the tribunal’s jurisdiction. The draft was of dubious constitutionality because it purported to give the District representation in the State parliament, notwithstanding that the composition of the State parliament was set by Article IV of the Constitution; and it compelled parties who are listed as having standing under Article VI to use the Constitutional Court as a first instance tribunal to file suit before the Constitutional Court to do so on the District’s behalf at its request, even though the District is not mentioned in Article VI as having standing before the Court. Neither the state nor the District officials invited to the negotiations agreed to this text. The Entities were never even invited to the negotiations. No wonder then that no support could subsequently be obtained from the Entities for the draft law, because it had been prepared without consultation with them, which gave them the perfect excuse to refuse to agree its contents. And without Entity support, there could be no passage of a state level law, because the members of the state parliament were elected from the Entities and thus saw themselves as representing Entity interests. The Law on the Indirect Taxation System of Bosnia and Herzegovina was drafted by OHR Sarajevo and adopted by the BiH Parliamentary Assembly on 31 December 2003 after intense lobbying by OHR. It will be recalled from Chapter Seven that the administrative list of the State Court, the only court with jurisdiction to hear complaints of maladministration against state institutions (such as the ITA Governing Board), as of July 2008 had never actually decided a case. For a still more detailed explanation and critique of OHR’s position on the ITA controversy and the ITA law that OHR prepared, see Clarke (2005). It will be recalled from Chapter Five that in the Final Award, the tribunal expressly retained ongoing jurisdiction in the event of ‘serious noncompliance’ with the Final Award: see Final Award paragraphs 13 and 67. Article 16(3) of the ITA law provides that ‘the members of the Board, by consensus, choose a Chairman from amongst the members…’, but this provision has never been used. Within two weeks of enactment of the ITA law, High Representative Ashdown appointed Mr Joly Dixon, an Englishman, as Chairman of the ITA Steering Board by a High Representative’s decision dated 14 January 2005 (OHR 2004b) without even attempting to invoke the procedure set out in Article 16(3). Dixon’s mandate was extended by repeated decisions of High Representatives until 30 June 2006. Dixon had sympathy for the District’s weak position before the ITA, and objected to the joint Federation and RS proposal to reduce the District’s coefficient to significantly less than

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that revealed by the data and to assign the surplus to the RS. Announcing in a press conference on 5 July 2006 that in order to ‘overcome the impasse, a new initiative is required’, High Representative Schwarz-Schilling replaced Dixon with Mr Peter Nicholl, formerly an internationally appointed governor of the Central Bank of Bosnia and Herzegovina, who had no such sympathies for the District or compunction for violating the ITA law. The first decision of the ITA that gave the District an unfairly low coefficient was dated 25 July 2006. One might infer that Nicholl was brought in by OHR to disregard the District’s interests and rubber-stamp an illegal deal between the Federation and the RS. The RS was hostile to the ITA law from the outset. It had no interest in seeing indirect tax collection centralised at the state level. The rationale of the ITA law was that expenditures for state institutions would be paid first from indirect tax revenues, and the Entities and the District would receive shares of the remainder. The RS saw state institutions as part of a project for a ‘Greater Federation’. It therefore had no interest in state institutions having guaranteed funding from a revenue source that was originally going direct to Entities. In other words, the RS would see less net revenue from statewide VAT and the ITA than it would see from an RS sales tax of the same level and with the same collection rate. Moreover, as the budgets for state institutions expanded, the RS’s budget would be squeezed. Although RS politicians agreed to and voted for ITA reforms under colossal pressure from Ashdown, as soon as he had gone they started to undermine the system. By May 2007 Dodik was publicly talking of withdrawing from IETAs, and most assumed he was referring to withdrawal from the ITA. Final Award paragraph 9: ‘…each entity shall be deemed to have delegated all of its powers of governance within the pre-war Brcko opština to [the District]…The legal effect [of creation of the District] shall be permanently to suspend all of the legal authority of both Entities within the Opština...’. Paragraph 8.A of the 18 August 1999 Annex to the Final Award: ‘…residents of the District shall no longer be subject to taxation by either entity except as provided in District tax laws’. Where the PIC derived the authority to terminate the mandate of the High Representative from was a mystery; see Chapter Four for a more detailed discussion of the legal powers of the PIC. It is not entirely clear when the State Department definitely determined to replace Johnson, but the evidence suggests that the decision was taken gradually over the course of several months. There was an attempt by Ashdown through his then PDHR Larry Butler to persuade the State Department to remove her in January 2006, after a dispute between the two over a law on judicial salaries in December 2005. OHR Sarajevo had drafted laws on judicial salaries for each of the state, both Entities and the District to harmonise countryside judicial salary calculation mechanisms that had been the subject of abuse in the Entities to pay judges exorbitantly high amounts. Ashdown insisted on imposing all four laws; Johnson maintained that the District Assembly should be given an opportunity to pass the District law first, failing which it would be better accepted in the District if she, rather than he, imposed it. Ashdown imposed the District law (OHR 2005e) but the District Assembly refused to publish his decision in its Official Gazette and instead enacted the law itself in accordance with its usual procedures. Gregorian (Johnson’s eventual successor) has confirmed that he was first approached as early as March 2006 to ask whether he would take the position. However, he initially refused and, in the absence of any other plausible and willing candidate, the question of her replacement seemed then to have been deferred within the State Department. However, following reignition of the tribunal proceedings in late July 2006, the issue was rekindled

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with renewed vigour, and by the time the summer vacation was over, Gregorian had been forced into taking the position, which he did with effect from 16 September 2006. Article V of the Constitution provides that there are three heads of state of Bosnia and Herzegovina. Called ‘Members of the Presidency’, one is Croat, one Bosniac and one Serb. They each serve for a four-year term and occupy the role of ‘Chair’ of the Presidency in turn, in rotating 16-month stints. Such a uniquely impractical system is one amongst many indicators that the drafters of the Dayton Constitution seemed to have little regard for creating a functional government structure. The Council of Ministers has no executive authorities under Article V.4 of the Constitution, most of which are assigned to the Presidency, under Article V.3. Article IV.2 provides that of the 42 members, two-thirds are to be elected from the territory of the Federation and one third from the territory of the RS. International intervention in Kosovo since 1999 is discussed in Chapter Nine. Here the briefest historical details will suffice. In the late 1990s, after the end of the Bosnian war, troubles erupted in Serbia’s majority Albanian southern province of Kosovo. The province had previously enjoyed significant constitutional autonomy from Serbia, revoked by Milošević-driven amendments to the SFRY constitution in 1989. In 1995 Kosovar Albanian separatists formed a guerrilla movement to pursue independence from Serbia, causing a mini-civil war to develop as Serbian armed forces went on a Bosnian-style rampage to put down the insurrection. Fearing another atrocity on the scale of Bosnia, the US demanded insertion of a UN military force into the province and withdrawal of Serbian troops. Milošević acceded only after a US bombing campaign, under the auspices of NATO, against military and government targets throughout Serbia in March 1999. The province was subsequently placed under UN civil administration and parallel government structures, entirely independent of Belgrade, were created by the UN mission. These new institutions were dominated by the Albanian majority. In 2006, a series of negotiations between the Kosovar Albanians and the Belgrade government were hosted in Vienna in an attempt to resolve the province’s final status. They were doomed to failure; the parties had no common interests and would not even shake hands. The Albanians demanded nothing less than independence, while the Serbs said they would agree to anything except independence. After the failure of the talks, in February 2007 the UN mediator Martti Ahtisaari proposed a plan for adoption by the UN Security Council, which would provide for what became known as ‘supervised independence’: Kosovo would be an independent state but subject to oversight by an international official similar in nature to the High Representative. This plan caused uproar amongst Serbs, particularly Bosnian Serbs, who saw the principle of self-determination implicit within it as sanctioning independence for the RS. Russia threatened to veto the plan on the Security Council. In February 2008, Kosovo’s domestic politicians unilaterally declared independence in coordination with the US and the EU. The new country was rapidly recognised by the US and the major EU powers, and Serbia and Russia were presented with a fait accompli. OHR (2007a). For commentary more critical of the tenure of Christian SchwarzSchilling, see ICG (2007) pp.4–8. Gregorian had been due to assume the role as of 1 October 2006 (OHR 2006n). However, Johnson was determined to impose three laws on public administration reform, drafted by BFAO but rejected by Bosniac members of the District Assembly in July 2006 as part of a summertime spat over the proposed locations of ethnically partisan war memorials, in which Bosniacs viewed Johnson as siding with the Serbs. In an attempt to prevent her from imposing these laws (OHR had become hostile to Johnson issuing any Supervisory Orders), OHR suddenly moved Gregorian’s appointment date forward two weeks to 16 September 2006 (confirmed on OHR’s website at

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http://www.ohr.int/ohr-offices/brcko/history/default.asp?content_id=5531, page last accessed 11 April 2008). The State Department notified Johnson of this last-minute change only on 14 September 2006. Their attempt to prevent her fromimposing these laws failed; Johnson wrote to High Representative Schwarz-Schilling on the same day, explaining that the orders would be signed on 15 September. A last-minute attempt by email late in the evening of 14 September 2006 immediately to revoke her appointment was ignored by BFAO, and Johnson signed the Supervisory Orders on 15 September 2006 (OHR 2006h, OHR 2006i). For the subsequent two weeks, Johnson remained de facto in office but without any legal powers; the administrative arrangements for her departure had been scheduled for 1 October 2006, and Gregorian was not ready to assume his duties until 1 October, as had been originally scheduled. What the State Department had against Johnson imposing the laws she did, and why they were prepared to go to such absurd lengths in the attempt to prevent her from doing so, were never clear. The only conceivable explanation can be that the level of hostility to her amongst State Department staffers had reached irrational heights. Supervisory Order amending the Statute of Brčko District dated 2 February 2007 (OHR 2007e). Supervisory Order on urban planning dated 23 March 2007 (OHR 2007c). Nezavisne Novine newspaper, 8 August 2007. According to this article, the average net salary in the Federation was 641KM in July 2007 and the average in the RS 569KM. This threat was contained in a letter dated 2 November 2006 to Izet Banda, President of SDP Brčko. The letter read ‘you organized a press conference…in which you alleged that OHR staff influenced the Brčko District Government’s decision to select a particular firm for the outsourcing of cleaning services…I would like to think that you would only make such a statement if you happen to be in possession of incontrovertible evidence…please come to my Office tomorrow…to present the evidence you have…I will be prepared to take immediate action.’ On 10 July 2007, Dragomir Andan was removed from the obscure office of Deputy Head of Administration for Police Education of Republika Srpska by a decision of the High Representative (OHR 2007m), the reason given was that the RS Police had failed to capture Radovan Karadžić and Ratko Mladić. The decision did not explain why particular responsibility for this failure fell upon the Deputy Head of Administration for Police Education, but did accuse Andan of ‘shielding war crimes indictees from justice’. No evidence is presented in the decision. Radovan Karadžić was captured in Belgrade, Serbia, in July 2008; it was never clear how Mr Andan could be responsible for failure to capture a fugitive who turned out to be living in a different country. Further, in a novel development in the perverse use of unrestrained authority, the decision commanded the police to investigate unspecified ‘allegations of wrongdoings’ by Andan and ordered him to surrender his passport and other travel documents until that investigation was complete. On the same day, Lajčák issued instructions to the RS Police to suspend 35 of their officers and to confiscate the passports and other travel documents of 93 RS citizens (OHR 2007n). These instructions were as good as law but were never even published; no pretense was made of giving individual reasons. These confiscations and suspensions took place without Court order and without the affected individuals even being given written notice by the High Representative of the measures he was taking against them. It had many of the characteristics of a Stalinist purge. Lajčák had been in office for only ten days when he issued these decisions. He had no opportunity to assess independently the merits of making these decisions himself. Gregorian had prepared the decisions before Lajčák had commenced office, and pressured him into signing them in his early days in the job.

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30 Under the 2003 District law on Entity Citizenship, District residents could select of which Entity they are a citizen. This would determine in which Entity’s elections they could vote. The Department of which Jusufović was the Head kept records of this selection. The complaint was that the Department had no record of Entity citizenship for some 15,000 District residents in advance of the election of the successor to the late RS President Milan Jelić, who died in October 2007. There was therefore no way of determining which of these 15,000 residents were entitled to vote in the RS Presidential election. Jusufović was thus accused of incompetence, for failing to keep the register up to date. But the allegation was quite misplaced. The District law and, indeed, the BiH Constitution, make it clear that Entity citizenship is optional. When applying for a District identity card, residents are invited to tick a box representing the Entity of which they elect to be a citizen. But they are not obliged to tick either box; and many do not do so, for tax or ideological reasons. There was no evidence that any of the 15,000 residents had declared an Entity citizenship that had not been recorded by the Department. 31 This threat was conveyed to the mayor in a telephone call on the evening of 21 June 2007. The District’s lawyer had prepared a letter to the tribunal asserting that the District did not agree to settle the proceedings. The mayor shared the letter with Gregorian that day, which led to the threat to remove him. 32 A tribunal cannot ordinarily dismiss a claim by a defendant on the strength of an assertion by the defendant that the matter is now settled. It should ask for a copy of a settlement agreement, signed by both parties. But OHR was not a defendant; it was not even a party to the proceedings. The defendants were the state and the Entities. They were never even asked whether they agreed to the ‘settlement’ before the claim was dismissed. And indeed they did not agree; they howled at the High Representative’s decisions, threatening in the press to challenge them before the Constitutional Court. 33 Source: Statistics on the Brčko School Network provided by the Brčko District Government Department of Education, September 2007. 34 Potemkin villages were purportedly fake settlements erected at the direction of Russian minister Grigory Potyomkin during the visit of Empress Catherine II to the Crimea in 1787. It is said that Potyomkin, who led the Crimean military campaign, had hollow facades of villages constructed along the desolate banks of the Dnepr River to impress the monarch with the value of her new conquests. 35 The author has written about this feature of OHR’s demise in Parish (2007). 36 The PIC Declaration of 27 February 2008 (OHR 2008c) read: ‘The objectives that will need to be delivered by the BiH authorities prior to transition are: Acceptable and Sustainable Resolution of the Issue of Apportionment of Property between State and other levels of government, Acceptable and Sustainable Resolution of Defence Property, Completion of the Brčko Final Award, Fiscal Sustainability (promoted through an Agreement on a Permanent ITA Co-efficient methodology and establishment of a National Fiscal Council), Entrenchment of the Rule of Law (demonstrated through Adoption of National War Crimes Strategy, passage of Law on Aliens and Asylum, and adoption of National Justice Sector Reform Strategy). In addition to the objectives listed above, the PIC Steering Board agrees that two conditions need to be fulfilled prior to transition: Signing of the SAA and a positive assessment of the situation in BiH by the PIC SB based on full compliance with the Dayton Peace Agreement.’ This supple shopping list seemed designed to give the international community maximum flexibility to terminate OHR whenever it considered it politically convenient to do so. 37 From this point, the only significant decisions the High Representative felt able to issue were those targeting alleged war criminals, seizing their passports and firing them (OHR 2008d, OHR 2008e). Persons associated with the war (that by this time had been over

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for 12 years) were generally not supported by the dominant Serb political party SNSD, so there was no RS opposition to the High Representative’s actions. 38 Former Supervisor Henry Clarke makes several of these points in Clarke (2005). 1

2 3

4 5 6 7 8 9

10 11 12 13 14 15

9 What Have We Learned? Press release of the EU Special Representative in Bosnia and Herzegovina dated 15 September 2006 (EUSRBiH 2006). From 2001, the High Representative was also the EU Special Representative. The EU Special Representative is a role without executive authorities, responsible only to EU institutions and whose mandate is to encourage the EU’s policy goals in his host country. In Bosnia’s case this includes placing the country on course for eventual EU membership. Several countries in the Eastern Europe and Central Asia region have EU Special Representatives, but in Bosnia and Herzegovina the position is largely titular, eclipsed by the dual role of High Representative. See e.g. De Hoogh (1996), p.371; Magliveras (1999), p.113; Neuhold (2001), p.66; Schweigman (2001), p.33; Wallace-Bruce (1998), pp.47–54. Binnendijk et al. (2006) consider and reject arbitration and supervision as a model for reconciling the divided town of Kosovo Mitrovica. But their reasons for rejection of the model essentially relate to domestic US politics rather than the situation on the ground: the process would need intense supervision by the US government, which from the terms of the report it is clear the US government does not wish to provide. The report was commissioned by the US military, being published by the National Defense University (NDU) in Washington, DC. The NDU is a university established and funded by the US armed forces. The report of the Iraq Study Group, a bipartisan commission established by the US President and Congress to examine how to make progress in postinvasion Iraq, issued its report on 6 December 2006, recommendation 30 of which describes the use of international arbitration to resolve the status of the ethnically divided city of Kirkuk in Iraq as ‘necessary’. The report gives no explanation of why its authors think arbitration would be a good idea; the idea seems to have been lifted from Brčko without analysis. See USIP (2006). The ‘Algiers agreement’ of 12 December 2000 (PCA 2000) formally ended hostilities between Ethiopia and Eritrea by agreeing to refer their dispute to arbitration. The Algierts agreement is essentially just an arbitration agreement. See Brownlie (2003), Chapter XXX.10. Article 22 of the Charter of the League of Nations. There were three types of mandate, corresponding to least developed, middle development and most developed territories. Farrand (2001). Article 103 of the Peace Treaty of Versailles. Such was the prevailing interpretation of the language contained in Article 103 of the Versailles Treaty, providing that the LON Council would ‘guarantee’ the Constitution of Danzig. Although constitutional amendments passed by the Danzig legislature were forwarded to the LON Council for approval, it never declined to approve them. See Ydit (1961), Part II Chapter 5. The ‘Paris Treaty’ of 9 November 1920 and the ‘Warsaw Treaty’ of 24 October 1921. Each of these treaties spelled out in detail the relationship between Danzig and Poland. Article 103 of the Peace Treaty of Versailles. Article 39 of the Treaty of Paris between Poland and the Free City of Danzig, dated 9 November 1920. Article 103 of the Peace Treaty of Versailles. Article 39 of the Treaty of Paris. Decisions of the High Commissioner were varied in a number of instances, but in all cases were essentially upheld.

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16 Hitler’s policy in Danzig from 1933 was to settle all outstanding disputes with Poland, while gradually introducing terror and anti-semitic policies and forcing out the international community. Due to his lack of proactive powers there was little the High Commissioner could do, although the PCIJ did declare Nazi legislation allowing arbitrary arrest and detention unconstitutional (PCIJ 1935). In his policy Hitler thus laid the groundwork for the subsequent invasion of Poland and Danzig once he was ready to do so. See Leonhardt (1942); Ydit (1961); Burckhardt (1960). The last of these is a personal reminiscence by the last, Swiss, High Commissioner to Danzig. It has not been translated into English but makes fascinating reading. 17 In the earliest days, Supervisory Orders were posted in relevant places around town, where those affected by them would be likely to see them. Subsequently they were published on the internet and distributed to all senior politicians. After establishment of the District, an ‘Official Gazette of Brčko District’ was created and all Supervisory Orders were published in that. But on several occasions, ‘quiet’ orders were issued, sent as letters without being published. The reason for that was generally to prevent complaint within the international community, to quietly correct a mistake in an earlier order or to avoid drawing attention to something that could be used in a politically destructive way. 18 See Chapter Four for an account of Dragan Kalinić’s attempt to get the High Representative’s decision banning him from public office overturned using legal means. He failed, but his was the closest anybody got while the institutions of High Representative and Supervisor remained in place. 19 The Final Award uses the term ‘permanently’ on three occasions, in paragraphs 9, 13 and 67. Although the contexts are slightly different, the intention is clearly that Brčko District should last indefinitely – at least as long as the Entitites persist. 20 UN Security Council Resolution 1244 is written in characteristically obscure diplomatic language, talking of authorising the Secretary General to establish a mission with certain aims in mind, but without saying what the mission can or cannot do. Presumably discussion of such details would have created diplomatic deadlock, so the tricky issue of the scope of the SRSG’s powers was avoided altogether in the negotiations over the resolution’s text. 21 The Ahtrisaari plan was presented to the parties in February 2007 after a year of failed negotiations, with a view to its adoption by the UN Security Council, but Russia threatened to veto it. 22 SRSG Joachim Rücker was reported in April 2008 as saying that UNMIK would remain in Kosovo ‘as long as resolution 1244 is in place’ (BBC 2008), adding that ‘whether and how there can be cooperation with [the EU mission] has yet to be decided’. That could be a long time: Resolution 1244 provides that UNMIK will continue until the Security Council decides otherwise. Given the Russian veto threat, it seems unlikely that any party will bring a Kosovo resolution before the Security Council for the indefinite future. 23 In a letter written to his fellow arbitrators on 5 March 1999 at the time the Final Award was issued, Owen himself described the prospects of further proceedings coming before the Tribunal as ‘highly unlikely’. 24 See for example Reilly (2002b). 25 Farrand (2001), p.581. 26 For example, by Binnendijk et al. (2006). 27 The Independent (2005).

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Office of the High Representative (OHR) (2000a) ‘High Representative’s decision on the establishment of the Brčko District of Bosnia and Herzegovina’, dated 8 March 2000. Available at http://www.ohr.int/ohr-offices/brcko/arbitration/default.asp?content_id=5265 Office of the High Representative (OHR) (2000b) ‘Supervisory Order on the appointment of members of the interim government of the Brčko District of Bosnia and Herzegovina’, dated 8 March 2000. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=5266 Office of the High Representative (OHR) (2000c) ‘Supervisory Order on the establishment of the interim district assembly of the Brčko District of Bosnia and Herzegovina’, dated 21 March 2000. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=5277. Office of the High Representative (OHR) (2000d) ‘Supervisory Order on the financial system of the Brčko District of Bosnia and Herzegovina’, dated 14 April 2000. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=5281 Office of the High Representative (OHR) (2000e) ‘Addendum to the Supervisory Order on the Financial System of the Brčko District of Bosnia and Herzegovina’, dated 22 June 2000. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=5289 Office of the High Representative (OHR) (2000f) ‘Supervisory Order on the appointment of a magistrate in Brčko District’, dated 17 August 2000. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=5292 Office of the High Representative (OHR) (2000g) ‘Supervisory Order on Arizona market’, dated 16 November 2000. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=5319 Office of the High Representative (OHR) (2000h) ‘Addendum to the Supervisory Order on the appointment of members of the interim government of the Brčko District of Bosnia and Herzegovina’, dated 26 May 2000. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=5285 Office of the High Representative (OHR) (2001a) ‘Supervisory Order on the appointment of members of the judiciary of the Brčko District of Bosnia and Herzegovina’, dated 8 March 2001. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=31657 Office of the High Representative (OHR) (2001b) ‘Supervisory Order on the revocation of the appointment of Mrs Hasija Zejnilović from the position of Head of the Department for Education in the Brčko District government’, dated 21 March 2001. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=31643 Office of the High Representative (OHR) (2001c) ‘Supervisory Order imposing the law on primary and secondary education of the Brčko District of Bosnia and Herzegovina’, dated 5 July 2001. Available at http://www.ohr.int/ohr-offices/brcko/bcso/default.asp?content_id=5764. Office of the High Representative (OHR) (2001d) ‘Decision appointing a provisional administrator for the Herzegovačka Banka’, dated 5 April 2001. Available at http://www.ohr.int/decisions/econdec/default.asp?content_id=60 Office of the High Representative (OHR) (2001e) ‘Supervisory Order on appointment of councillors of the Interim District Assembly’, dated 28 November 2001. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=6445 Office of the High Representative (OHR) (2001f) ‘Supervisory Order on revocation and appointments of councillors of the interim Brčko District Assembly’, dated 10 April 2001, in ‘OHR Essential Legal Texts of Brčko District August 2007’, Brčko: Office of the High Representative North.

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Office of the High Representative (OHR) (2002a) ‘High Representative’s decision enacting the law on the High Judicial Council of Bosnia and Herzegovina’, dated 23 May 2002. Available at http://www.ohr.int/decisions/judicialrdec/default.asp?content_id=8464 Office of the High Representative (OHR) (2002b) ‘High Representative’s decision enacting the law on the High Judicial and Prosecutorial Council of Republia Srpska’, dated 23 May 2002. Available at http://www.ohr.int/decisions/judicialrdec/default.asp?content_id=8468 Office of the High Representative (OHR) (2002c) ‘High Representative’s decision enacting the law on High Judicial and Prosecutorial Council of the Federation of Bosnia and Herzegovina’, dated 23 May 2002. Available at http://www.ohr.int/decisions/judicialrdec/default.asp?content_id=8470 Office of the High Representative (OHR) (2002d) ‘High Representative’s decision on constitutional amendments in Republika Srpska’, dated 19 April 2002. Available at http://www.ohr.int/decisions/statemattersdec/default.asp?content_id=7474 Office of the High Representative (OHR) (2002e) ‘High Representative’s decision on constitutional amendments in the Federation’, dated 19 April 2002. Available at http://www.ohr.int/decisions/statemattersdec/default.asp?content_id=7475 Office of the High Representative (OHR) (2002f) ‘High Representative’s decision amending the constitution of the Federation of Bosnia and Herzegovina’, dated 7 October 2002. Available at http://www.ohr.int/decisions/statemattersdec/default.asp?content_id=28092 Office of the High Representative (OHR) (2002g) ‘High Representative’s decision amending the BiH election law in accordance with the new Entity Constitutions’, dated 19 April 2002. Available at http://www.ohr.int/decisions/statemattersdec/default.asp?content_id=7476 Office of the High Representative (OHR) (2002h) ‘High Representative’s decision enacting the Law on Statistics of Bosnia and Herzegovina and directing that the Entities shall harmonise their laws and regulations dealing with the collection, processing and dissemination of statistics in accordance with the provisions of this law, and further directing that the Entities enter into negotiations under Article III.5 (b) of the constitution of Bosnia and Herzegovina as hereinafter set out’, dated 21 October 2002. Available at http://www.ohr.int/decisions/econdec/default.asp?content_id=28432 Office of the High Representative (OHR) (2002i) ‘High Representative’s decision regulating various matters of a transitional nature arising out of previous decisions of the High Representative as aforesaid and enacting the law on communications of Bosnia and Herzegovina’, dated 21 October 2002. Available at http://www.ohr.int/decisions/econdec/default.asp?content_id=28250 Office of the High Representative (OHR) (2003a) ‘Supervisory Order on the revocation of the appointment of Siniša Kisić to the position of the mayor of Brčko District of BiH, and Ismet Dedeić to the position of Head of Department of Urbanism, Real Estate Affairs and Economic Development’, dated 12 November 2003. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=31160 Office of the High Representative (OHR) (2003b) ‘High Representative’s decision enacting the law on ministerial and government appointments of Bosnia and Herzegovina’, dated 27 February 2003. Available at http://www.ohr.int/decisions/statemattersdec/default.asp?content_id=29353 Office of the High Representative (OHR) (2003c) ‘High Representative’s decision proposing the law on the Intelligence and Security Agency of Bosnia and Herzegovina to the Parliamentary Assembly of Bosnia and Herzegovina’, dated 17 December 2003. Available at http://www.ohr.int/decisions/statemattersdec/default.asp?content_id=31403

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273

Office of the High Representative (OHR) (2003d) ‘High Representative’s decision enacting the law re-amending the law on Court of Bosnia and Herzegovina’, dated 24 January 2003. Available at http://www.ohr.int/decisions/judicialrdec/default.asp?content_id=29080 Office of the High Representative (OHR) (2004a) ‘Decision enacting the law repealing the law on pardon of Bosnia and Herzegovina’, dated 26 November 2004. Available at http://www.ohr.int/decisions/judicialrdec/default.asp?content_id=33591 Office of the High Representative (OHR) (2004b) ‘Decision on the appointment of the first Chairman of the Governing Board of the Indirect Taxation System’, dated 14 January 2004. Available at http://www.ohr.int/decisions/econdec/default.asp?content_id=31580 Office of the High Representative (OHR) (2004c) ‘Decision enacting the statute of the City of Mostar’, dated 28 January 2004. Available at http://www.ohr.int/decisions/mo-hncantdec/default.asp?content_id=31707 Office of the High Representative (OHR) (2005a) ‘Supervisory Order reiterating the requirement for the Supervisor’s approval for the disposal of public property in Brčko District’, dated 23 February 2005. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=34088 Office of the High Representative (OHR) (2005b) ‘Supervisory Order amending the statute of Brčko District of Bosnia and Herzegovina’, dated 14 September 2005. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=35447 Office of the High Representative (OHR) (2005c) ‘Supervisory Order on suspension of adoption of regulatory plans until amendments and addenda to the Urban Development Plan for Brčko District of BiH are adopted’, dated 7 November 2005. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=36086) Office of the High Representative (OHR) (2005d) ‘Supervisory Order on restructuring the Brčko District administration’, dated 21 November 2005. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=36086 Office of the High Representative (OHR) (2005e) ‘Decision enacting the law on salaries and other compensations for judges and prosecutors in Brčko District of Bosnia and Herzegovina’, dated 12 December 2005. Available at http://www.ohr.int/decisions/statemattersdec/default.asp?content_id=36238 Office of the High Representative (OHR) (2005f) ‘Decision enacting the law on salaries and other compensations in judicial and prosecutorial institutions at the level of Bosnia and Herzegovina’, dated 12 December 2005. Available at http://www.ohr.int/decisions/statemattersdec/default.asp?content_id=36232 Office of the High Representative (OHR) (2006a) ‘Communiqué by the PIC Steering Board’, dated 23 June 2006. Available at http://www.ohr.int/pic/default.asp?content_id=37503 Office of the High Representative (OHR) (2006b) ‘Supervisory Order abolishing entity legislation in Brčko District and declaring the inter-entity boundary line to be of no further legal significance in the District’, dated 4 August 2006. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=37764 Office of the High Representative (OHR) (2006c) ‘Decision terminating the appointment of the provisional administrator of ‘Hercegovačka Banka’ Mostar and transferring competencies concerning the provisional administration of ‘Hercegovačka Banka’ Mostar to the banking agency of the Federation of BiH’, dated 15 December 2006. Available at http://www.ohr.int/decisions/econdec/default.asp?content_id=38733 Office of the High Representative (OHR) (2006d) ‘Supervisory Order relating to irregularities in civil service employment procedures’, dated 23 March 2006. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=36832

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Office of the High Representative (OHR) (2006e) ‘Supervisory Order appointing members of an interim commission for conducting the procedures for employment of civil servants’, dated 5 May 2006. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=37908 Office of the High Representative (OHR) (2006f) ‘Supervisory Order repealing the Socialist Republic of Bosnia and Herzegovina law on construction land of 1986 within the boundaries of Brčko District and also repealing part of Article 60 of The Law on Spatial Development of Brčko District of 2003 and also repealing the mayor’s decision on the size of fees for development of construction land of 2004’, dated 1 March 2006. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=36719 Office of the High Representative (OHR) (2006g) ‘Supervisory Order mandating the restructuring of the department for urbanism, real estate affairs and economic development’, dated 16 August 2006. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=37859 Office of the High Representative (OHR) (2006h) ‘Supervisory Order enacting as laws of Brčko District the law on public property of Brčko District of BiH and the law on the Public Attorney’s Office of Brčko District of BiH’, dated 15 September 2006. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=38094 Office of the High Representative (OHR) (2006i) ‘Supervisory Order enacting as a law of Brčko District the law on civil service in administrative bodies of Brčko District of BiH’, dated 15 September 2006. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=38098 Office of the High Representative (OHR) (2006j) ‘Supervisory Order appointing two members of the Brčko District Judicial Commission and amending the law on the Judicial Commission’, dated 23 March 2006. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=36836) Office of the High Representative (OHR) (2006k) ‘Supervisory Order appointing members of the Brčko District Office in the Council of Ministers’, dated 4 April 2006. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=36928 Office of the High Representative (OHR) (2006l) ‘Decision appointing Mr Peter Nicholl as an initial Chairman of Governing Board of the Indirect Taxation Authority’, dated 5 July 2006. Available at http://www.ohr.int/decisions/econdec/default.asp?content_id=37600 Office of the High Representative (OHR) (2006m) ‘Interim Supervisory Order temporarily suspending court proceedings to evict Pavlović International Bank from premises in Brčko town’, dated 1 September 2006. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=37982 Office of the High Representative (OHR) (2006n) ‘Press release: High Representative appoints Raffi Gregorian as new Brčko Supervisor’, dated 3 September 2006. Available at http://www.ohr.int/ohr-dept/presso/pressr/default.asp?content_id=38028 Office of the High Representative (OHR) (2007a) ‘Communiqué by the PIC Steering Board’, dated 27 February 2007. Available at http://www.ohr.int/pic/default.asp?content_id=39236 Office of the High Representative (OHR). 2007b. Supervisory Order appointing the Chief of Police of Brčko District, dated 2 February 2007. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=39076 Office of the High Representative (OHR) (2007c) ‘Supervisory Order on urban planning’, dated 23 March 2007. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=39400

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Office of the High Representative (OHR) (2007d) ‘Supervisory Order appointing members of the Audit Office of Brčko District’, dated 13 February 2007. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=39129 Office of the High Representative (OHR) (2007e) ‘Supervisory Order amending the statute of Brčko District’, dated 2 February 2007. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=39032 Office of the High Representative (OHR) (2007f) ‘Supervisory Order enacting various laws and amendments to laws of Brčko District pursuant to the Supervisory Order of February 2, 2007 amending the Statute of Brčko District’, dated 26 June 2007. At http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=40044 Office of the High Representative (OHR) (2007g) ‘Response by the Office of the High Representative to the 2 April 2007 reply submission of the Brčko District of Bosnia and Herzegovina’, dated 23 April 2007. (Not published; author has a copy on file.) Office of the High Representative (OHR) (2007h) ‘Decision enacting the law on amendments to the law on the indirect taxation system in Bosnia and Herzegovina’, dated 4 May 2007. Available at http://www.ohr.int/decisions/econdec/default.asp?content_id=39687 Office of the High Representative (OHR) (2007i) ‘Decision enacting the law on amendments to the law on payments into the single account and distribution of revenues’, dated 4 May 2007. Available at http://www.ohr.int/decisions/econdec/default.asp?content_id=39689 Office of the High Representative (OHR) (2007j) ‘Supervisory Order ordering the District Assembly to amend its code of conduct and fining Mr Šemso Saković, councillor in the Assembly of Brčko District’, dated 8 May 2007. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=39708 Office of the High Representative (OHR) (2007k) ‘Decisions enacting the law on amendments to the criminal procedure code of Bosnia and Herzegovina, enacting the law on amendments to the criminal procedure code of the federation of Bosnia and Herzegovina, enacting the law on amendments to the criminal procedure code of the Republika Srpska, and enacting the law on amendments to the criminal procedure of Brčko District’, each dated 13 April 2007. Available at http://www.ohr.int/decisions/judicialrdec/default.asp?content_id=39531 http://www.ohr.int/decisions/judicialrdec/default.asp?content_id=39535 http://www.ohr.int/decisions/judicialrdec/default.asp?content_id=39539 http://www.ohr.int/decisions/judicialrdec/default.asp?content_id=39543 Office of the High Representative (OHR) (2007l) ‘High Representative’s Order on the implementation of the decision of the Constitutional Court of Bosnia and Herzegovina in the appeal of Milorad Bilbija et al, No. AP-953/05’, dated 23 March 2007. Available at http://www.ohr.int/decisions/statemattersdec/default.asp?content_id=39397 Office of the High Representative (OHR) (2007m) ‘High Representative’s decision to remove Dragomir Andan from his position as Deputy Head of Administration for Police Education of the Ministry of Interior of Republika Srpska’, dated 10 July 2007. At http://www.ohr.int/decisions/removalssdec/default.asp?content_id=40172 Office of the High Representative (OHR) (2007n) ‘Press conference statement by the High Representative Miroslav Lajčák’, dated 10 July 2007. Available at http://www.ohr.int/ohr-dept/presso/pressb/default.asp?content_id=40166 Office of the High Representative (OHR) (2007o) ‘Supervisor Gregorian commends the act of institutional responsibility of the Head of Department of Public Records’, press release dated 21 November 2007. Available at http://www.ohr.int/ohr-dept/presso/pressr/default.asp?content_id=40866

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Office of the High Representative (OHR) (2007p) ‘Supervisory Order on temporary suspension on payments of salaries and all remunerations to the members of Brčko District Government and councilors of the Assembly of Brčko District’, dated 4 December 2007. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=40944 Office of the High Representative (OHR) (2007q) ‘Statute of the Brčko District of Bosnia and Herzegovina’, as of 2 February 2007. Available at http://www.ohr.int/ohroffices/brcko/arbitration/default.asp?content_id=39069 Office of the High Representative (OHR) (2007r) ‘Lajčák meets Rehn: Long-awaited agreement on police reform adopted’, press release dated 3 December 2007. Available at http://www.ohr.int/ohr-dept/presso/pressr/default.asp?content_id=40923 Office of the High Representative (OHR) (2007s) ‘Addendum to the Final Award’, dated 26 June 2007. (Not published; copy on file with author.) Office of the High Representative (OHR) (2008a) ‘Declaration by the Steering Board of the Peace Implementation Council’, dated 27 February 2008. Available at http://www.ohr.int/pic/default.asp?content_id=41352 Office of the High Representative (OHR) (2008b) ‘Supervisory Order amending the statute of Brčko District, enacting the election law of Brčko District, enacting the rules of procedure of the assembly of Brčko District and amendments to respective regulations of Brčko District’, dated 6 May 2008. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=41660 Office of the High Representative (OHR) (2008c) ‘Declaration by the Steering Board of the Peace Implementation Council’, dated 27 February 2008. Available at http://www.ohr.int/pic/default.asp?content_id=41352 Office of the High Representative (OHR) (2008d) ‘Decision to remove Mr Predrag Čeranić from his current position in the Intelligence and Security Agency of Bosnia and Herzegovina’, dated 30 May 2008. Available at http://www.ohr.int/decisions/removalssdec/default.asp?content_id=41770 Office of the High Representative (OHR) (2008e) ‘Order seizing travel documents of persons who obstruct or threaten to obstruct the peace implementation process’, dated 30 May 2008. Available at http://www.ohr.int/decisions/war-crimes-decs/default.asp?content_id=41774 Office of the High Representative (OHR) (2008f) ‘Supervisory Order appointing Ms Ljiljana Orendi as member of the Brčko District Election Commission and also fining the councilors of the Brčko District Assembly’, dated 19 September 2008. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=42323 Office of the High Representative (OHR) (2008g) ‘Supervisory Order on fining members of the Brčko District government and directing measures to be taken by the Brčko District Assembly to facilitate adoption of a budget for Fiscal Year 2009’, dated 8 October 2008. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=42385 Office of the High Representative (OHR) (2009) ‘Supervisory Order on temporarily suspending payments of salaries and remunerations to the councilors of the Assembly of Brčko District’, dated 6 February 2009. Available at http://www.ohr.int/ohr-offices/brcko/bc-so/default.asp?content_id=43015 Official Gazette of Bosnia and Herzegovina (OGBiH) (2003) ‘Law on indirect taxation system of Bosnia and Herzegovina’, Official Gazette of Bosnia and Herzegovina No. 44/03. Owen, David (1996) Balkan Odyssey London: Harcourt. Pallen, Daniel (2003) ‘Sexual slavery in Bosnia: The negative externality of the market for peace’, Swords & Ploughshares XIII(1).

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GLOSSARY

ARBiH BFAO

BD

BiH BLRC

CAFAO

DMT

DPA

EASC

Army of the Republic of Bosnia and Herzegovina. The Bosniac armed forces during the Bosnian war. Brčko Final Award Office. The name the Brčko regional office of OHR (OHR North) gave itself after 5 March 1999, the date the Final Award was issued. The purpose of the change of name was to focus upon the office’s goal of implementing the Final Award, and to distinguish its mandate from that of OHR. Brčko District. The single multi-ethnic, autonomous unit of local selfgovernment established in the pre-war Brčko opština by the Final Award of the Brčko Arbitration Tribunal. The District has almost all the legal powers of an Entity, although for political and constitutional reasons it is not permitted to describe itself as a third Entity. Bosnia and Herzegovina. The formal name for the new state created by the DPA. Brčko Law Revision Commission. A commission established by the Final Award to create a new legal system for Brčko District, in practice this was a one-man exercise run by a U.S. lawyer Michael Karnavas. Karnavas was dismissed in 2001 after diplomatic wrangles described in Chapter Six, and the Commission’s work formally concluded. Customs and Fiscal Assistance Office. An EU mission to Bosnia to improve the quality of border controls and customs operations. Its Brčko delegate, Eamonn O’Reardon, was adopted by BFAO and single-handedly ran the Brčko customs terminal until 2003. District Management Team. A team of American consultants brought into Brčko to supervise the new District government in late 1999. The DMT was widely perceived as ineffective, for although it introduced a number of institutional reforms novel to the region (see Chapter Six) it failed to follow through on their implementation and after its departure in May 2003 many of the institutions it had created ceased to work effectively. Dayton Peace Accords. The peace agreement ending the war in Bosnia and Herzegovina, dated 14 December 1995. The DPA has 12 annexes which contain a wealth of detail about the implementation of the peace agreement. Annex 4 is the Constitution of the new state. Electoral Appeals Subcommission. Article III of Annex 3 to the DPA provided that OSCE would establish a ‘Provisional Election Commission’ to oversee implementation of the first post-war elections. This Commission established the EASC as a quasi-judicial sub-unit, to hear complaints of unfair electoral practices, and sanction responsible persons and political

280

EUFOR

EUSRBiH

FA FBiH

FRY GFAP HDZ

HJPC

HR

HSS

A FREE CITY IN THE BALKANS parties. Its rulings were subject to approval of the Head of the OSCE mission in Bosnia and Herzegovina, who declined to approve them in several controversial cases. European Force. The name of the international military peacekeeping force in Bosnia after March 2004, when US troops withdrew from the country. The name derives from the fact that the remaining countries contributing troops were all European. European Union Special Representative in Bosnia and Herzegovina. The EU appoints ‘special representatives’ to a number of countries with which it has significant external relations, several of which are countries from the former communist bloc and who receive significant EU development assistance. Its special representatives are charged with promoting democratic institutional reform. The EUSR for Bosnia has always in practice been the same person as the High Representative. Final Award of the Arbitral Tribunal for the Dispute over the Inter-Entity Boundary in the Brčko Area, dated 5 March 1999. The award of the Tribunal in which it decreed the creation of Brčko District. Federation of Bosnia and Herzegovina. One of the two Entities, established in March 1994 pursuant to the Washington Agreement between Bosniacs and Bosnian Croats settling hostilities between them. The Constitution of the FBiH provides for a series of cantons, roughly on the Swisss model, with significant local autonomy including their own prime ministers and parliaments. At the time of the Washington Agreement it was anticipated that the cantonal model would provide the basis for the entire country and the RS territory would be absorbed into the Federation. FBiH would therefore become the name of the entire country. However, this never came to pass, as the Serb negotiators at Dayton insisted on keeping the RS as a single political unit without it being divided into separate cantons. Thus the FBiH became one of two Entities, the other being the RS. Federal Republic of Yugoslavia. The name for the SFRY from 1992, when it renamed itself, dropping the word ‘socialist’. The FRY renamed itself ‘Serbia and Montenegro’ in 2003. General Framework Agreement for Peace in Bosnia and Herzegovina. The formal name for the DPA. Hrvatska Demokratska Zajednica. Croat Democratic Union, the largest Croat political party in Bosnia and Herzegovina. The political party of Franjo Tuđman, until his death in December 1999 associated with uncompromising Croat nationalism, its political outlook gradually moderated thereafter. High Judicial and Prosecutorial Council. A state-level institution responsible for appointments and disciplining of judges and prosecutors countrywide, and for setting judicial policy. Initially conceived by High Representative Petritsch in 2002, the HJPC is for the most part perceived as a relatively successful state-level reform, primarily due to extensive and capable international incubation. High Representative. The most senior international official in post-war Bosnia, whose position and office is created by Annex 10 to the DPA. After December 1997 the High Representative acquired extraordinary powers of unilateral imposition over the will of Bosnia’s elected authorities and essentially became Bosnia’s colonial governor. Hrvastka Seljačka Stranka. Croatian Peasants’ Party. Nationwide a minor

GLOSSARY

HVO

IC ICG

ICJ

ICR

ICTY

IEBL

IETA

IFOR

IPTF

281

Croat party but with significant local support in Brčko District. From 2008 its national leader was Ivan Krndelj, Deputy Mayor under the District government appointed by Supervisor Farrand and Deputy President of the Assembly after the October 2004 District elections. Hrvatsko vijece obrane. Croatian Defence Council. The Bosnian Croat armed forces during the Bosnian war. HVO soldiers were paid by the government of Croatia. In the Brčko area, this led to significant numbers of Bosniacs fighting for the HVO, as the ARBiH was an army of volunteers. International community. A standard abbreviation throughout Bosnia to refer to the rash of international organisations and foreign government representatives that have come to dominate post-war Bosnian political life. International Crisis Group. A prominent international NGO focusing on conflict and post-conflict zones and areas experiencing political crisis and repression worldwide. ICG has published many influential papers about post-war Bosnia. International Court of Justice. An international court, established by the United Nations Charter, whose principal jurisdiction is to hear disputes between states about alleged breaches of international law. It is the successor to the PCIJ. International Civilian Representative. The international official proposed by the February 2007 Ahtisaari plan for the independence of Kosovo to supervise post-independence Kosovar institutions (www.unosek.org). The ICR is to have powers very similar to those of the High Representative in Bosnia. International Criminal Tribunal for Yugoslavia. An international court whose seat is in The Hague, established by UN Security Council Resolution 827 (1993) to try war crimes cases arising out of the conflicts associated with the disintegration of the SFRY in the 1990s. Inter-Entity Boundary Line. The internal border between the two Entities, the position of which was the principal issue for negotiation at Dayton. The IEBL for the most part follows the location of the front line, but not exclusively so, particularly around Sarajevo, the Goražde corridor, and ‘the egg’ (a roughly oval area of land south west of Banja Luka, given to the RS to compensate them for loss of land in the Goražde corridor). For more details see Holbrooke (1999). Inter-Entity Transfer Agreement. An agreement between the two Entities, made pursuant to Article III.5(a) of the Constitution of Bosnia and Herzegovina, to transfer a responsibility for a particular government function from the Entity level to the state level. Only two IETAs were signed: on indirect taxation (5 December 2003) and the judiciary (11 March 2004). Implementation Force. The international peacekeeping force sent to Bosnia and Herzegovina in December 1995 to ensure military implementation of the DPA. It was formally disbanded at the end of 1996, to honour US President Clinton’s commitment that US troops would not be present in Bosnia for more than one year. However, only the name changed and US troops remained in Bosnia under the guise of SFOR in significant numbers until 2004. International Police Task Force. A UN agency composed of police officers from around the world, sent to Bosnia pursuant to Annex 11 to the DPA to supervise post-war development of the country’s police forces. IPTF

282

ITA

JNA

KM OSCE

OHR PCA

PCIJ

PDHR PIC

RBiH

RS

A FREE CITY IN THE BALKANS remained in Bosnia until the end of 2002 and acquired a reputation for incompetence, impropriety and serious crime. Indirect Taxation Authority. The state institution established in January 2004 under HR Ashdown’s tenure to collect, administer and distribute indirect taxes countrywide. Ineptitude in preparation of the legislation governing its operation led to renewal of legal proceedings before the Brčko Tribunal. Yugoslav National Army. The national armed forces of the SFRY. By the early 1990s this army was dominated by Serb officers and did the bidding solely of the Serb leadership in Belgrade under SFRY President Slobodan Milošević. Konvertibilna Marka. Convertible Mark, the post-war common currency throughout Bosnia, introduced by OHR in 1998. It is pegged to the Euro at a rate of 1.95 KM to 1 Euro. Organisation for Security and Cooperation in Europe. Established in 1975, OSCE is an international organisation with a variety of international relations mandates and over 50 participating states. Its principal mandate in post-war Bosnia was preparation of election legislation and supervision of elections, pursuant to Annex 3 to the DPA which gave it specific powers. Office of the High Representative. The ad hoc international organisation established to oversee civilian implementation of the Dayton Peace Accords, established by Annex 10 to the DPA. Permanent Court of Arbitration. An international organisation established in 1899 and still in existence today, the PCA oversees certain types of international arbitration procedure and offers services such as administration of proceedings and a venue. Various arbitration treaties and rules given specific rights to the PCA, most commonly to appoint arbitrators. Permanent Court of International Justice (1921–1945). The international court established under the Charter of the League of Nations, primarily to resolve disputes between member states of the League. In several instances the Court became a de facto appeal venue from decisions of the High Commissioner for Danzig, as the Council of the League of Nations would refer appeals from those decisions to it. Principal Deputy High Representative. The most senior of the various deputies to the High Representative. By convention the post is always held by an American appointee of the US State Department. Peace Implementation Council. A regular meeting of civil servants from the foreign ministries of the principal interested foreign governments that contribute funds to OHR and oversee its operation. It has on occasion vested itself with legal powers, including the authority to expand the High Representative’s powers beyond those stated in the DPA, and the authority to decide when the mandate of OHR will terminate. Republic of Bosnia and Herzegovina. The wartime name for the state of Bosnia and Herzegovina, after its declaration of independence from the Socialist Federal Republic of Yugoslavia in March 1992. Upon signature of the Dayton Peace Accords the country was renamed simply Bosnia and Herzegovina. Republika Srpska. Serb Republic or ‘Republic of Srpska’ (the official RS Government English translation). The name of the Bosnian Serb Entity established under the Dayton Peace Accords. The name was first used in August 1992 during the war by the Bosnian Serbs to describe their territory.

GLOSSARY RSK

SAA

SBiH

SDA

SDHR

SDP

SDS

SFOR SFRY

283

Republika Srpska Krajina. Republic of Serb Krajina. The self-declared Serb state within the borders of Croatia, existing from July 1990 (as a Parliament) through December 1990 (when it declared itself autonomous) and June 1991 (when it announced its secession from Croatia), until August 1995 when it was overrun in a Croat military offensive entitled Operation Storm. Stabilisation and Association Agreement. The first step for any candidate country to join the European Union, the SAA sets out the legal and institutional reforms a country must achieve to qualify for membership. Its terms are for the most part non-negotiable. Its signature qualifies the candidate country for significant EU funding towards achieving the necessary reforms. Stranka za Bosna i Herzegovina. Party for Bosnia and Herzegovina. A Bosniac nationalist political party headed by Bosniac demagogue Haris Silajdžić who became the Bosniac member of the Bosnian State Presidency in October 2004. Stranka za Demokratcija Akcija. Party of Democratic Action. A Bosniac nationalist political party. The party of the President of the wartime Republic of Bosnia and Herzegovina, Alija Izetbegović. Formerly associated with political Islam, but this association receded after Sulejman Tihić became its head in October 2001. Senior Deputy High Representative. After the HR and the PDHR, the third in command in OHR. By convention the SDHR was always a European; he was always a German until HR Schwarz-Schilling (January 2006–June 2007), when the post went to a Dutchman, Peter Basbacker. The position was eliminated after June 2007, in a political coup by PDHR Gregorian to remove Basbacker, with whom he had clashed. Socijaldemokratska Partija. Social Democratic Party. A Bosniac-dominated moderate political party, being (together with SPRS) the successor to the communist party from 1990. It purports to be multi-ethnic, and Željko Komšić, an SDP member, was elected Croat member of the State Presidency in the October 2006 elections, albeit mostly on the basis of votes by Bosniacs. It remained generally unpopular, its leaders being associated with corruption. The party of Mirsad Đapo, first elected mayor of Brčko District. Srpska Demokratska Stranka. Serb Democratic Party, the principal Serb political party throughout and immediately after the war, and the party of Radovan Karadžić. Associated with extreme Serb nationalism, they remained a formidable political force until the October 2006 general elections when they were eclipsed by Dodik’s SNSD. Stabilisation Force. The umbrella name for the international troops stationed in Bosnia as peacekeepers with effect from 1 January 1997. SFOR was in all but name identical to IFOR, its predecessor. Socialist Federal Republic of Yugoslavia. The pre-war name of the Yugoslavian state, encompassing all six Yugoslav republics and the two autonomous regions within Serbia. Slovenia, Macedonia and Croatia seceded from the SFRY in 1991. Bosnia attempted to do so in 1992 and its independence was settled by the DPA in 1995. The SFRY dropped the word ‘socialist’ and renamed itself the FRY in 1992. Formally the FRY continued in existence with only two members, Serbia and Montenegro, until 2003, when it renamed itself ‘Serbia and Montenegro’. This union was itself dissolved in May 2006, when Montenegro seceded from Serbia

284 SNSD

SPRS

SRBiH SRS

SRSG

UNHCR

UNMIK VRS ZOS

A FREE CITY IN THE BALKANS following a referendum on independence. Stranka Nezavisnih Socijaldemokrata. A Serb political party established by RS Prime Minister Milorad Dodik (1998–2001 and January 2006–present). Dodik was initially perceived as a moderate, but in the run-up to the October 2006 national elections his rhetoric became increasingly nationalistic and this did not significantly subside in the elections’ aftermath. SNSD won a significant victory in the RS in those elections, becoming the biggest single political party in BiH and the dominant force in RS politics. Socialisticka Partija Republike Srpske. Socialist Party of Republika Srpska. The RS splinter successor to the communist party, which split into the SDP and SPRS in 1990. The party of Siniša Kisić, first mayor of Brcko District (appointed by Supervisor Farrand in 2000) and of Branko Damjanac, second mayor (appointed by Sontheim in 2003 after Kisić’s removal). Socialist Republic of Bosnia and Herzegovina. The communist era name for the Bosnian republic within the SFRY. Srpska Radikalna Stranka. Serb Radical Party. A hard-line nationalist Serb political party with presence in both Bosnia and Serbia, known for extreme confrontational rhetoric. The party’s leader is Vojislav Šešelj, at the time of writing on trial at the ICTY in The Hague for war crimes. Special Representative of the Secretary General. The head of UNMIK, pursuant to UN Security Council Resolution 1244 (1999). The SRSG has exercised powers to impose legislation in much the same way as the High Representative, although Resolution 1244 does not explicitly grant him that power. United Nations High Commission for Refugees. The name of an international organisation within the UN umbrella, with responsibility for managing the interests of refugees, particularly those displaced by civil conflict. The United Nations Mission in Kosovo. The United Nations agency responsible for the government of Kosovo since 1999, pursuant to UN Security Council Resolution 1244 (1999). Vojska Republike Srspke. The Armed Forces of Republika Srpska. The official RS army. Fighting alongside the VRS, at least in the early stages of the Bosnian war, were the JNA and various Serb militia and irregular forces. Zone of Separation. The demilitarised zone established under Annex 1A to the Dayton Peace Accords, from which each side agreed to withdraw all armed forces at the end of the conflict. IFOR troops initially occupied positions in the ZOS, between the warring parties’ armed forces.

INDEX

Abyei Boundaries Commission, 206 Arbitral Tribunal for the Dispute over the Inter-Entity Boundary in the Brčko Area, 37–8, 51, 53, 56–73, 102–108, 179, 181–2, 184, 192–4, 204–5 Arbitration, xii-xiii, 12, 47–54, 55–73, 74, 82, 100–4, 108, 113, 116, 179, 200–1, 204–6, 218, 224, 227–8, 234, 243–6, 248, 262 Ashdown, Paddy, 93–4, 96–7, 114–5, 117, 136-7, 141, 143–9, 159, 162, 166, 175, 177–81, 184–6, 191–2, 199, 202, 222, 230, 236, 255–8, 281 Arizona market, 60, 62, 66, 128-32, 232, 252, 254 Austria-Hungary, 28 Bildt, Carl, 42-3, 45, 47–8, 56, 64, 70– 1,75, 86, 102, 149, 180, 236, 242 Brčko, xi–xii, 1, 35–47, 58–62, 74–78 Brčko District, xii, 72, 102–27, 196–9 Brčko Final Award Office (BFAO), 118– 19, 123, 125–9, 135–7, 147–9, 158– 64, 174–77, 180–2, 187–8, 190–1, 196, 229–30, 259–60, 279 Brčko Law Revision Commission (BLRC), 106, 124, 127, 136, 163, 279 Bosnia and Herzegovina, Socialist Republic of, 30–1, 34–6, 44, 52, 59, 284 Camp McGovern, 60, 77, 79, 128, 246 Četniks, 30, 84, 247 Clarke, Henry, xvii, 127–33, 137–9, 148– 9, 163, 169, 170-3, 178, 188, 222, 237, 252, 254, 262 Christopher, Warren, 47, 72 Condominiums, 116–7, 139, 178 Consociationalism, 44, 152–5, 202, 254

‘Constitutent peoples’ decision, 153–5 Constitutional Court of Bosnia and Herzegovina, 46, 67, 90, 96–7, 115, 138, 153, 165–74, 186, 243–4, 248, 255–7, 261 Constitution of Bosnia and Herzegovina, 26, 44, 53, 55, 57, 61, 67, 94, 106, 113–6, 133, 137–41, 152, 172, 178, 185, 194, 199, 222–3, 244–5, 259 Constructivism, 2, 25, 242 Čović, Dragan, 166, 168 Cracow, Free City of, xii, 109–10, 140, 215 Crete, 110, 140, 215 Croatia, ix, xv, 29–35, 39–41, 53, 59, 62, 68, 70, 79–81, 90, 107, 109, 117, 122, 132, 170, 216, 242–3, 252–5 Cyprus, 16, 17, 241 Danzig, 117, 140, 210–5, 219–20, 262–3 Đapo, Mirsad, 122, 158, 159, 179, 189, 230, 238 Dayton Peace Accords (DPA), xi, xiii, 21, 43–4, 54–5, 67, 76, 86, 152, 240, 244 Dedeić, Ismet, 128, 158, 160, 254 Dodik, Milorad, 102, 104, 138, 156, 186, 231, 253, 258 Eastern Slavonia, 42 Ethiopia / Eritrea border dispute, 205–6 Farrand, Robert W. (‘Bill’), v, xvii, 75– 87, 102–3, 120, 122–3, 127, 131–3, 158, 180, 221–2, 237–8, 246–7, 262– 3 Federation of Bosnia and Herzegovina (FBiH), 70, 239, 253 Final Award, vii, 12, 52, 73, 75, 102–18, 123–4, 136–42, 155, 160, 170–9, 184, 193–4, 215, 218, 222, 227, 237, 246

286

A FREE CITY IN THE BALKANS

Fiume (Rijeka), 117, 250 Frowick, Robert, 83, 84, 247 Gregorian, Raffi, 94, 96, 181, 187–93, 222, 229–33, 237, 248, 258–61 Hays, Donald, 149, 185 Holbrooke, Richard, 47, 56, 71, 74, 223, 230, 242 Implementation Force (IFOR), 44, 46, 53, 55, 60, 74, 86–7, 243 Inter-Entity Boundary Line (IEBL), 36, 47, 51, 53, 60 Inter-Entity Transfer Agreement (IETA), 147 International Criminal Tribunal for Yugoslavia (ICTY), 37, 59, 166 International Police Task Force (IPTF), 80, 130, 247 Internationalised territories, 215, 221 Inzko, Valentin, 231, 232, 236 Iraq, xiv, 2, 8, 13, 15, 98, 149, 176, 187, 199, 204–5, 217, 262 Izetbegović, Alija, 53, 61, 64, 70–1, 208, 243–4 Jay Treaty, 50 Jerusalem, Free City of, 112, 140, 215, 250 Johnson, Susan, xvii, 107–8, 128, 149, 159, 162, 169, 173, 175, 178, 180–1, 185–7, 222, 237, 254, 258–9 Karadžić, Radovan, 54, 78, 104, 166, 260 Karnavas, Michael, 124–7, 136, 253 Kaufmann, Chaim, 17, 20, 241 Kisić, Siniša, 122, 125, 128, 238 Koschnik, Hans, 201, 207 Kosovo, xiv, xv, 2, 6, 7, 8, 25, 30, 32, 97, 127, 195–6, 199, 205, 216–7, 240, 259 Krndelj, Ivan, xvii, 122 Lagumdzija, Zlatko, 289 Lajčák, Miroslav, 180, 190, 195, 231, 236, 248, 253, 260 League of Nations, 112, 142, 208–9, 210, 211, 221, 253, 262 Macedonia, 30, 32, 255 Matthews, Gary, 120, 127–31, 237 McLeod, Ian, 75 Meraje Church, 83–4 Mihajlović, Draža, 84 Milošević, Slobodan, 24, 32, 40, 43, 47, 53, 56, 165, 216, 259 Mladić, Ratko, 41, 166, 248, 260 Montgomery, William, 74

Mostar, 37, 39–40, 80, 89, 131, 136, 144, 168, 188, 199-203, 207 O’Reardon, Eammon, 132 Office of the High Representative (OHR), i, xvi, 2, 12, 21, 25, 27, 45, 87, 92, 102–3, 117, 121, 127, 130–1, 135, 149, 162, 168, 175–88, 192–3, 196, 199, 201–23, 226 Organisation for Security and Cooperation in Europe (OSCE), 83, 149 Osmić, Zecheriah, 189 Ottoman Empire, ix, 16, 28, 29, 35, 110 Owen, Roberts, xvii, 43, 47, 56–8, 62–6, 69–74, 82, 99–108, 112, 116, 139, 142, 177, 179, 181–8, 192-3, 205, 213, 215, 218, 224–5, 240, 244–6, 250, 257, 263 Pajić, Dragan, 230, 237–8 Pajić, Miodrag, 78 Partisans, 84, 247 Partition theory, 14, 17, 19 Petritsch, Wolfgang, 93, 103, 129, 131, 144, 236 Plavšić, Biljana, 77, 104 Poplasen, Nikola, 103, 104, 250 Principal Deputy High Representative (PDHR), 149, 187 Radcliffe Commission, 50 Rann of Kutch arbitration, 50-2, 57, 104, 205 Realism, 2, 22, 25 Rehn, Olli, 146, 231 Republika Srpska (RS), xvi, 35, 39, 41, 48, 58, 70, 72, 109, 114–5, 122, 143, 146, 156, 239, 249, 253, 260 Republika Srpska Krajina (RSK), 33–4 Rwanda, 4–8 Saar, 221 Schwarz-Schilling, Christian, 96, 144, 180, 185–7, 192–4, 202, 236, 248–9, 258–60 Serbia, xv, 4, 7, 28–35, 39, 42–3, 53, 103, 144, 196, 216, 240, 259–60 Shabbanikov, Genady, 75, 77 Silajdzić, Haris, 186, 189, 253 Slovenia, 30-3, 236, 242, 255 Sontheim, Gerhard, 128, 237–8 Stablisation Force (SFOR), 60, 76-7, 80, 87, 106, 119, 246