EUobserver opinion: EU needs to confront Dodik

A campaign by Milorad Dodik, the Bosnian Serb leader, against the judiciary in Bosnia and Herzegovina is threatening to derail the European Union’s approach to the country.

The Bosnian Serbs are poised to hold a referendum on the powers of state-level prosecutors and judges as early as September, and while diplomats have warned Dodik that the referendum would be illegal, it is unclear what counter-measures, if any, they might be considering.

In mid-July, foreign diplomats, including the ambassadors of the EU, several member states, and the US, travelled to Banja Luka, the capital of Republika Srpska (RS), to warn the Bosnian Serbs against the referendum.

“We are deeply concerned that the proposed referendum would represent an unconstitutional attempt not to reform but to undermine and weaken those authorities, and would thus pose a direct threat to the sovereignty and security of the country as a whole”, they said in a joint statement. “This cannot be tolerated”.

Diplomats on the ground and in the capitals are now considering their options in reacting to the referendum threat.

There are still hurdles to clear for the referendum to take place. Bosniak (Bosnian Muslim) deputies in the RS parliament vetoed the referendum decision, which might mean that the RS supreme court has the last word.

But few observers believe that this procedure could stop the referendum. Only the international community, and specifically the EU together with the US, has the weight to prevent Dodik from following through on the plan - either by confronting him or by appeasing him. In deciding which course to take, the EU and the US should consider the sources of the current crisis.

The referendum seeks to annul decisions imposed by the international high representative, who oversees implementation of the 1995 Dayton peace accords, and specifically those decisions to do with the Court of Bosnia and Herzegovina and the state-level Prosecutor’s Office, with their branches for corruption and organized crime.

Dodik claims that the two institutions are unconstitutional since Dayton assigns competence for judicial matters to the entities, not to the state - an argument refuted by Bosnia’s constitutional court in 2009 (the Court and Prosecutor’s Office were established with the agreement of the entity parliaments, a decision backed by Dodik and his party at the time).

Dodik also maintains that the state-level judiciary is anti-Serb because its proceedings have focused on Bosnian Serbs.

Three goals

In going after the judiciary, Dodik appears to be pursuing at least three distinct goals.

First, he wants to prevent corruption investigations that might be outside of his control. In this, he has the tacit support of other political leaders in the country who have much to fear, at least in theory, from an empowered, independent anti-corruption prosecutor.

Second, Dodik wants to challenge the ‘Bonn powers’ of the high representative (currently Valentin Inzko of Austria). The Bonn powers include the power to strike down domestic laws or decisions deemed to be anti-Dayton, and the power to impose decisions in order to strengthen the Dayton system.

Previous high representatives used these powers to impose various measures to strengthen Bosnia’s state-level institutions. So Dodik’s third motive in threatening a referendum is to obstruct the central government and to chip away at its authority.

Deja vu

The international community has been here before.

In late 2009, it caved in to Dodik when he demanded an end to the executive role of international prosecutors and judges at the Court of Bosnia and Herzegovina dealing with organised crime and corruption (those dealing with war crimes were allowed to stay on, highlighting the true nature of Dodik’s worries).

When Dodik again challenged the power of the central-level judiciary, in 2011, Catherine Ashton i, the EU’s foreign-policy chief at the time, made an unprecedented visit to Banja Luka to offer concessions.

In exchange for dropping the referendum threat - “for now,” as he stressed, standing next to Ashton, during their joint news conference - Dodik was given a symbolic victory: A “structured dialogue” on justice was launched, sending the signal that Dodik’s complaint about the judiciary might have some validity.

Dodik has now dusted off his complaint about the judiciary’s alleged bias. This time around, the international response was less tepid; it appears that some EU member states have recognised that appeasing Dodik will not make the problem go away but merely postpone the day of reckoning.

When the EU’s foreign ministers discussed the referendum threat at their monthly meeting on 20 July, Slovenia, Croatia, and Slovakia were adamant that a referendum would be in violation of the Dayton agreement (Slovakia’s foreign minister, Miroslav Lajcak, was Inzko’s predecessor as high representative).

The Office of the High Representative, in an analysis prepared ahead of the referendum decision, also took that view.

This would, in principle, allow Inzko to move against Dodik and those in charge of organising the referendum, for example by removing them from office.

But this is purely theoretical: the high representative’s authority has been sapped by years of deliberate neglect on the part of the EU, which dislikes the institution’s executive mandate, and he will not be able to act without the backing of major member states.

He also has no instruments to enforce his decisions.

Dodik

The EU itself could, in principle, move on its own against Dodik, who is reported to have property in an EU member state and would therefore be vulnerable to an asset freeze.

But the chance to move pre-emptively has been lost: the first Foreign Affairs Council meeting after the summer break is on 12 October, and whatever action the ministers might take would be retrospective.

No meeting is scheduled for September, when foreign ministers will be in New York for the UN General Assembly. An informal meeting on 4 and 5 September in the ‘Gymnich i’ format lacks the power to adopt restrictive measures or formal conclusions.

Dodik has been laying the groundwork for a confrontation by spending considerable public funds on lobbying and legal representation in Washington, and, presumably, Brussels as well.

Last year, the RS government spent at least $2.5 million in the US, according to filings under the Foreign Agents Registration Act. (there are no such reporting obligations in the EU).

Since 2009, the RS has been paying a monthly retainer to the Washington firm of Picard, Kentz & Rowe. The retainer dropped from a peak of $167,000 a month to $90,000 in the most recent contract, signed in January 2015.

According to its Scope of Engagement, the firm’s services include “advice and representation” on matters including “RS legal rights and obligations under applicable international law including the Dayton Peace Accords” and “RS and BiH rights and obligations vis a vis the Office of the High Representative” - precisely the issue at stake.

Default setting

At present, it looks unlikely that the EU will impose sanctions or any other measures.

The EU’s default setting is to engage with elected leaders, no matter how abusive of their office they may be.

Prime minister Gruevski of Macedonia, newly empowered by a badly thought-through deal brokered by the EU, is a case in point.

Dodik has sought confrontation with the international community because he thrives on confrontation. Some diplomats believe that by pushing back, the international community is giving Dodik what he wants.

But by not pushing back, it would allow him to claim victory - and pave the way for yet another confrontation at a time of his choosing.

Toby Vogel is a writer on foreign affairs based in Brussels and a senior associate of the Democratization Policy Council