Bosnia and Herzegovina: Debate and EUFOR ALTHEA Reauthorisation*
Tomorrow morning (2 November), the Security Council will hold its semi-annual debate on Bosnia and Herzegovina (BiH). At the time of writing, no briefer was expected. Željko Komšić, the Croat member of the rotating tripartite inter-ethnic Presidency of BiH and the incumbent Chairman of the Presidency, and other regional states are expected to participate under rule 37 of the Council’s provisional rules of procedure.
The 1995 General Framework Agreement for Peace in Bosnia and Herzegovina (GFAP), also known as the Dayton Peace Agreement, created two entities within BiH: the predominantly Bosniak and Croat Federation of Bosnia and Herzegovina (FBiH) and the predominantly Serb Republika Srpska (RS). The two entities are linked by a rotating tripartite inter-ethnic presidency and a two-chamber legislative branch with equal representation by the three major ethnic groups (Bosniaks, Croats, and Serbs). Both entities also have their own executive and legislative branches.
The Dayton Peace Agreement also established the Office of the High Representative (OHR) and the NATO-led Implementation Force (IFOR) to oversee implementation of the agreement’s civilian and military aspects, respectively. In 1996, IFOR was replaced by the NATO-led Stabilisation Force (SFOR), which in turn was replaced in 2004 by the EU-led multidimensional stabilisation force (EUFOR ALTHEA).
Tomorrow morning, Council members are also expected to vote on a draft resolution renewing EUFOR ALTHEA’s authorisation for an additional year.
Negotiations on the Draft Resolution
Council products on BiH are prepared by the BiH Coordination and Drafting Group (CDG), which is comprised of France, Germany, Italy, Russia, the UK, the US, and elected Council members Albania, Malta, and Switzerland. Each member chairs the group for one month, rotating in alphabetical order. Switzerland is the CDG Chair in November.
The draft resolution in blue, which was prepared by Switzerland, renews EUFOR ALTHEA’s authorisation for a period of one year. It consists of the same key operative paragraphs contained in resolution 2658 of 2 November 2022—which most recently renewed the force’s authorisation—without adding any new elements.
Council dynamics on BiH have been difficult during the past several years, leading to challenging negotiations on EUFOR ALTHEA’s authorisation. The RS and Security Council members China and Russia do not recognise the legitimacy of Christian Schmidt as High Representative for BiH. Russia maintains that appointments to the position must be formally endorsed by a Security Council resolution, a position with which several other Council members disagree. (For background, see the BiH brief in our November Monthly Forecast.)
During the negotiations on resolution 2604, which renewed EUFOR ALTHEA’s authorisation in November 2021, Russia apparently expressed support for EUFOR ALTHEA but demanded that the draft resolution not include references to the High Representative. It seems that ahead of the 3 November 2021 debate on BiH, Russia blocked Schmidt’s briefing by threatening to veto the Council’s renewal of EUFOR ALTHEA’s authorisation. As a result, the meeting did not feature a briefer. Following the vote to adopt resolution 2604, several Council members expressed regret that the Security Council had failed to adopt a more substantial resolution. Russia described support for EUFOR ALTHEA’s mandate renewal as the only “common denominator” among Council members on the issue of BiH. (For background, see our 2 November 2021 What’s in Blue story.)
It appears that the penholder’s decision to pursue a straightforward renewal of EUFOR ALTHEA’s authorisation this year was driven by a desire to minimise disagreements among Council members. As a result, the negotiations seem to have gone relatively smoothly compared to previous deliberations on EUFOR ALTHEA’s authorisation. Switzerland convened a meeting of the CDG on 12 October and circulated an initial draft of the resolution to Council members on 23 October. Following negotiations on 25 October, Switzerland placed the draft under silence until 27 October. After passing the silence procedure, the draft was put in blue on Monday (30 October). The penholder’s strategy for this year’s negotiations, which involved engaging in extensive bilateral consultations ahead of sharing the initial draft, apparently contributed to the smooth negotiating process.
Given the challenging dynamics on BiH, it appears that an agreement was reached among Council members on a straightforward renewal of EUFOR ALTHEA’s authorisation, with an understanding that the High Representative will not brief the Council at tomorrow’s debate. A similar decision was made last year during the negotiations on resolution 2658. (For background, see our 1 November 2022 What’s in Blue story.)
Debate
Tomorrow’s debate takes place amid growing separatist actions and rhetoric in BiH. The latest report of the High Representative for BiH (S/2023/798), which was circulated to Council members on 23 October and covers developments from 16 April to 15 October, notes that the reporting period was characterised by “an unprecedented level of attacks against the GFAP”. Moreover, it says that “[t]he High Representative and the BiH Constitutional Court are particularly under attack from [RS]. The aim is to undermine their ability to safeguard the Dayton Peace Agreement and the constitutional and legal order of BiH”.
According to the report, on 21 June, the National Assembly of RS (RSNA) amended the Law on Publication of Laws and Other Regulations of RS in an attempt to absolve itself of the responsibility to publish the High Representative’s decisions in its official gazette. The amended law sought to render the High Representative’s decisions invalid in the RS. Two days earlier, on 19 June, the OHR said in a statement that “no political rhetoric or amendment to law can relieve institutions and those who work in them” of the obligation to cooperate fully with the High Representative. The statement underscored that the High Representative’s decisions “have the same status as laws enacted by domestic parliaments and carry the same constitutional necessity for publication, regardless of any subordinate law or regulation” and warned that by pursuing the amendments, RS would be “sailing in heavy waters”.
In June, tensions heightened further after the RSNA adopted legislation opposing BiH’s Constitutional Court. The court comprises nine judges: four selected by the FBiH, two by the RSNA, and three by the President of the European Court of Human Rights, in consultation with the BiH Presidency. The inclusion of foreign judges has been a prominent issue, particularly for RS authorities, which have been accused by the court of seeking to disrupt its work by failing to appoint judges from RS to meet the court’s quorum rules. In a 19 June statement, the court unveiled a modification to its own quorum rules, enabling plenary sessions to be held and decisions to be taken by a simple majority, or five judges. (Previously, the court was unable to make decisions if judges from RS were not present.) In a 20 June post on X (formerly Twitter), Dodik labelled this move as “anti-Serb, anti-constitutional and anti-Dayton”.
The RSNA passed a law on 27 June declaring rulings of BiH’s Constitutional Court non-applicable in the RS. This move sparked broad condemnation, with many fearing that it signalled RS’ intention to secede. On 29 June, the US described the law’s adoption as representing “a dangerous escalation in secessionist threats”. On the same day, France condemned the RSNA decision, saying that it contradicted BiH’s EU aspirations, adding that it has “no legal effect”. On 31 July, the US imposed sanctions on four Bosnian Serb officials for being responsible for, or complicit in, passing the law.
On 1 July, Schmidt issued several decrees to prevent the RSNA’s 21 June and 27 June decisions from taking effect. Notably, one decree modified BiH’s criminal code, allowing for the criminal prosecution of authorities or officials who fail to “apply, implement, enforce or otherwise comply with a decision of the High Representative”. Those who obstruct the decrees’ application, implementation, or enforcement can also face prosecution and could be subject to a prison sentence of up to five years.
At Russia’s request, Council members convened for a meeting on the situation in BiH under “any other business” on 7 July. Russia requested the meeting in response to what it described as “provocative changes” made to the Constitutional Court’s quorum rules, which Russia perceives as setting BiH on “the path to the destruction of the Dayton structure”. Assistant Secretary-General for the Middle East, Asia and the Pacific Mohamed Khaled Khiari briefed Council members.
On 11 September, a BiH court confirmed an indictment against Dodik on charges of failing to implement the High Representative’s decisions. (In August, the Prosecutor’s Office of BiH had lodged charges against Dodik.) Dodik dismissed the indictment, reiterating on 13 September that Schmidt is not a legitimate High Representative. At the initial hearing on 16 October, Dodik refused to enter a plea, saying that, despite his request for the indictment to be drafted in the Serbian Cyrillic script, it was provided in Latin.
Deep divisions related to BiH’s Euro-Atlantic integration and possible accession to the EU and NATO—particularly between Russia, on the one hand, and the US and European Council members, on the other—are likely to be on display at tomorrow’s debate. Council members are expected to express diverging views on the OHR’s role and on Schmidt’s legitimacy as High Representative. China and Russia are likely to object to unilateral sanctions and what they view as external efforts to influence the country’s political trajectory. Some Council members may urge RS authorities to cease secessionist actions that they argue could undermine stability in BiH.
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Post-script: On 2 November, the Security Council unanimously adopted resolution 2706, renewing the authorisation of the the EU-led multidimensional stabilisation force (EUFOR ALTHEA) for another year.
