What's In Blue

Posted Tue 10 May 2022

Bosnia and Herzegovina Debate

Tomorrow (11 May), the Security Council will hold its semi-annual debate on Bosnia and Herzegovina (BiH). High Representative for BiH Christian Schmidt is scheduled to brief on the latest report of the Office of the High Representative (OHR), which covers the period from 16 October 2021 to 15 April (S/2022/374). Šefik Džaferović, the Bosniak member of the rotating tripartite inter-ethnic Presidency of BiH and the incumbent Chairman of the Presidency, is expected to participate under rule 37 of the Council’s provisional rules of procedure.

A procedural vote regarding Schmidt’s participation at tomorrow’s debate is a possibility. China and Russia have questioned Schmidt’s appointment process and have not recognised his authority as High Representative for BiH. These members had previously blocked Schmidt from briefing at the Council’s 3 November 2021 debate on BiH, apparently by threatening to veto the Council’s renewal of the authorisation for the EU-led multinational stabilisation force (EUFOR ALTHEA), which was set to expire two days after the meeting. (For background, see our 21 July 2021 and 2 November 2021 What’s in Blue stories.) At the time of writing, it appears that Schmidt’s participation at tomorrow’s meeting would garner the requisite support. (Procedural votes require a minimum of nine votes in favour to be adopted and are not subject to a veto by permanent Council members.)

Tomorrow’s debate takes place amid growing nationalist rhetoric and separatist actions in BiH. On 8 October 2021, Milorad Dodik, the Bosnian Serb leader of the predominantly Serb Republika Srpska (RS), announced that the RS would withdraw from key national institutions, including BiH’s judicial system, the taxation authority and the armed forces. On 10 December 2021, the National Assembly of the RS (NARS) voted in favour of initiating the procedure to withdraw RS from BiH’s institutions. The proposed provisions were expected to come into force following a six-month period, during which time the Assembly could draft new laws and, if needed, amend the RS constitution.

Since Dodik’s announcement in October 2021, the NARS has passed several laws challenging the authority of federal BiH institutions and, in some cases, forming separate institutions within the RS to supersede them. In October, NARS adopted a law on pharmaceuticals and medical devices that foresees the establishment of an independent body within the RS to assume the responsibilities of the national Agency for Medical Equipment and Drugs. This law is expected to enter into force at the end of June. The latest High Representative’s report, which was circulated to Council members on 4 May, notes that this law can be viewed as “a trial balloon for the RS authorities’ ambitions to unilaterally take over the State’s constitutional responsibilities in other areas”.

On 10 February, the NARS initiated proceedings to undermine BiH’s judicial system, voting in favour of a draft law that seeks to annul the establishment of the High Judicial and Prosecutorial Council of BiH and envisages an autonomous judicial and prosecutorial agency within RS that would, among other functions, be responsible for appointing and dismissing judges.

During the same parliamentary session, the NARS adopted a law on “Immovable Property Used for the Functioning of Authorities” that seeks to establish the RS’ ownership of select property used by RS public authorities that previously belonged to BiH. According to the High Representative’s report, the law, which entered into force on 14 April, represents “the unilateral attempt of the RS to regulate ownership rights over State Property assets and is unconstitutional”. The report also notes that the law “violates relevant decisions of the BiH Constitutional Court and precludes an acceptable and sustainable resolution of the issue of State Property–a key requirement of the 5+2 Agenda”. The 5+2 Agenda is a set of five objectives and two conditions that need to be fulfilled prior to the OHR’s closure adopted in 2008 by the Steering Board of the Peace Implementation Council (PIC), a body which was established in 1995 to garner international support for the Dayton Agreement.

On 12 April, two days prior to the law’s entry into force, Schmidt issued a decree suspending the law until a final decision of BiH’s Constitutional Court is rendered. The decree was rejected by the RS, which has not recognised the High Representative’s authority since October 2021. That was when a law passed by NARS on 30 July 2021 entered into force, declaring that a decision of the High Representative did not apply to the RS. The law was in response to then-High Representative Valentin Inzko’s 22 July 2021 decree amending BiH’s criminal code, which set prison terms for anyone who publicly denies or attempts to justify genocide, war crimes and crimes against humanity.

The latest High Representative’s report welcomes sanctions imposed by the UK and the US on Dodik for attempting to “undermine the legitimacy and functionality of the State” and for his “destabilizing and corrupt activities”, respectively. The report also expresses disappointment and alarm at recent comments made by the Russian Ambassador to BiH, Igor Kalabukhov, who told reporters on 17 March that “Ukraine’s example shows what to expect” by way of a Russian response should BiH take steps to join NATO. The report argues that it is “unacceptable for an ambassador and a member of the PIC S[teering] B[oard] to use the example of a war being perpetrated in another country as a ‘warning’ to his host country”.

At tomorrow’s debate, Džaferović is likely to say that the RS is obstructing the functioning of state-level decision-making processes. In this regard, he may note that BiH was unable to adopt a budget for 2021 and the first two quarters of 2022. He is likely to stress that this could impede the work of the BiH Central Election Commission, which is tasked with organising elections. Although elections are scheduled to be held in the first week of October, BiH authorities have not been able to secure the funds needed to conduct preparatory activities because of the failure to adopt the 2022 budget of BiH institutions.

Schmidt is expected to reiterate concerns regarding the RS’ separatist rhetoric and actions. In his previous report (S/2021/912), dated 1 November 2021, Schmidt argued that the RS’ actions are “tantamount to secession without proclaiming it”. In his latest report, Schmidt contends that the RS’ subversion of state-level institutions and its unilateral withdrawal from these institutions “serve the end goal of the de facto dissolution of the State of BiH”.

Most Council members are expected to express support for the continued implementation of the Dayton Agreement. Some Council members—including European members and the US—are likely to voice concern regarding BiH’s divisive ethnic politics and express support for efforts to reform BiH’s constitution and electoral system. Since mid-2021, the EU and the US have facilitated negotiations on a comprehensive package of constitutional and electoral reforms in an effort to resolve long-standing issues impeding the functioning of BiH’s political institutions.

Russia is expected to accuse the High Representative of issuing a biased report. During the Council’s 3 November 2021 debate on BiH, Russia called the High Representative’s 1 November 2021 report an “anti-Serb document aimed at destroying the glimmer of peace and cooperation among people in Bosnia”. Moscow may also criticise Schmidt’s decision to suspend the RS’ Law on “Immovable Property Used for the Functioning of Authorities”, while maintaining that he does not have the authority to issue orders. In this regard, Russia is also likely to stress that the situation in BiH is an internal matter and that the OHR and the PIC are contributing to the instability in BiH. Russia suspended its contribution to the OHR budget in February.

Sign up for What's In Blue emails