Report on A Reinforced EU-Engagement in Bosnia and Herzegovina
in the Context of the Closure of the Office of the High Representative
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I. INTRODUCTION
The General Affairs and External Relations Council on 15 May 2006 invited the Secretary General/High Representative with the European Commission and in close consultation with the Presidency to begin consultations with the Peace Implementation Council (PIC) Steering Board, EUSR/HR Dr Schwarz-Schilling, the authorities in Bosnia and Herzegovina (BiH), and other key stakeholders on a reinforced EU engagement in BiH in the context of the closure of the Office of the High Representative (OHR).
We presented our first report to the Council on 12 June 2006. It set out key themes to be addressed in the planning process for a reinforced EU engagement after OHR, as well as possible parameters. This assessment was by nature preliminary - not least because the PIC Steering Board had yet to decide on the date of closure of the OHR.
On 23 June, the PIC Steering Board agreed that "the OHR will immediately begin preparations to close on 30 June 2007" and that the Steering Board would "review and confirm in early 2007 the OHR closure, taking into account the overall situation in BiH and the region".
We have continued our consultations with key stake holders since June. The present assessment reflects these discussions, as well as reactions to our June 12 report. It offers concrete recommendations for the Council's consideration and sets out possible timelines, with a view to follow-up in relevant Council preparatory bodies.
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II. POLITICAL UPDATE
Bosnia and Herzegovina stands before important political challenges in the coming months. Planning for a reinforced EU presence in BiH after OHR will need to take this into account. Regional developments must be watched closely, as the Kosovo Status process progresses and Serbian elections draw near. Discussions about a potential draw-down in EUFOR force levels, as per the Operations Commander's contingency plan, are expected to factor in the same considerations.
The October 1 general elections were conducted in accordance with international standards for democratic elections and passed almost without incident. The Central Election Commission estimated voter turnout to be around 54.5%. Due to BiH's new system of passive voter registration, more voters than ever before in post-war BiH were registered and exercised their right to vote.
With most of the votes counted, the contest for the BiH Presidency is now decided: Haris Silajdzic (SBiH) will replace Sulejman Tihic (SDA); Nebojsa Radmanovic (SNSD) claimed the Bosnian Serb seat ahead of SDS-rival Mladen Bosic; and the SDP's Zeljko Komsic defeated the incumbent Ivo Miro Jovic (HDZ) for the Croat seat in the Presidency. This marks a complete change in both the individual and the political party composition of the BiH Presidency.
Similar shifts in electoral fortunes took place at other levels as well, judging by early results. The "old" nationalist parties - the SDA, the HDZ, and the SDS - appeared to have lost ground overall in comparison with the 2002 general elections. The big winner was Milorad Dodik's SNSD, which was underway to become the largest party in both the state-level and RS parliaments, thereby being in a position to claim their respective prime minister posts. The SNSD also won the race for RS President. Silajdzic's SBiH and the new Croat party HDZ 1990 gained ground as well. The SNSD, the SBiH and the HDZ 1990 all campaigned on strong nationalist platforms, however, and opposed the international community on key reforms. So, despite the defeat of the old nationalist parties, the overall impact of the elections on key reforms remained unclear. The process of government coalition formation, which is expected to last several months, and the articulation of government work programmes should give a better picture of where the different parties stand in practice.
Negotiations continue on a Stabilisation and Association Agreement (SAA) between the EU and BiH. Technical-level talks are proceeding well. However, key reforms required for the conclusion of the SAA have fallen behind schedule. The EU warned BiH in July during the Foreign Minister's Troika that the conclusion of the SAA negotiations is dependent on significant overall progress in addressing key European Partnership priorities, notably as regards police reform, ICTY co-operation, public broadcasting and public administration. The Commission will issue its next Progress Report on Bosnia and Herzegovina on 8 November 2006, outlining the current situation. The EU, with its partners, will continue to support and encourage the BiH authorities in order to accelerate progress on all key reforms.
The signature of an SAA, and the subsequent entry into force of an Interim Agreement covering matters of Community competence would significantly deepen EU-BiH relations. The bodies provided for in the SAA and the Interim Agreement would closely monitor and encourage further reform. Preferably, the negotiations on an SAA and preparations for the closure of the OHR should advance in parallel; however no direct link exists between the two.
Constitutional reform is likely to return to the political agenda in 2007, once new governments have taken office. BiH needs a stronger and more functional state with its own de-blocking mechanisms and clearly defined government competencies and structures to meet the needs of European integration. In this context, the reform of the constitutional framework is essential. The challenges ahead will be considerable. The last few months' pre-election debate gave a preview of what lies ahead. Inflammatory rhetoric about future constitutional arrangements became so severe in August/September that it prompted the Council to express concern and reaffirm its unequivocal commitment to the Dayton/Paris Peace Agreement and the territorial integrity of BiH. The process of agreeing a concrete package of reforms promises to be long and difficult, even if the April 2006 constitutional reform package were to be adopted as a first step.
Against this background, we remain of the view that in the future the EUSR will need to be politically proactive and engaged. The EUSR must play a leading role in facilitating political agreements necessary to strengthen the state, promote continued peace and stability, and broker key reforms, notably constitutional reform.
The end of the OHR will not mark the end of peace stabilisation. BiH's political and institutional structures will continue to evolve within the framework of the Dayton/Paris Agreement. While the BiH authorities will bear the main responsibility in this aspect, the EU's support to this process will remain important.
The end of the OHR should mark a turning point in the IC's engagement, however. As agreed by the PIC Steering Board, the time has now come to transfer full ownership and responsibility to the local authorities and close the OHR on 30 June 2007 - subject to a review taking into account the situation in BiH and the region. Without prejudice to decisions by the PIC Steering Board, we assess that only concerns about the country's peace and stability, including regional risk factors, should shift this timeline.
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III. EU POLITICAL OBJECTIVES
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a. Long-Term Objective. To ensure a stable, viable, peaceful, and multiethnic Bosnia and Herzegovina co-operating peacefully with its neighbours and irreversibly on track towards EU membership.
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b. Medium-Term Objectives. i) To support Bosnia and Herzegovina's progress towards EU integration by its own efforts, through the implementation of a Stabilisation and Association Agreement; and ii) to help build effective and functional state structures fit for European integration.
c. Short-Term Objective. To ensure an effective transition from OHR to increased local ownership supported by a reinforced, coherent, and unified EU presence in Bosnia and Herzegovina; to continue a commensurate reduction in EUFOR's role in executive peace implementation; and to help overcome the impasse in police restructuring and other reform requirements to enable the conclusion of an SAA. To contribute to peace and stability in BiH and support the country's sovereignty and territorial integrity, which will include a first stage of progress on constitutional reform.
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IV. EUSR ROLE
Although political uncertainties persist, the planned closure of the OHR is a mark of how far the overall situation in Bosnia and Herzegovina has improved over the past 11 years, and of the country's readiness to assume ownership and accountability. A change in approach on our part is therefore called for.
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The EUSR mandate should be revised to reflect needs on the ground both during the transition phase and after the OHR has closed.
As suggested in our June report, a reinforced EUSR office would constitute an important part of the EU's comprehensive engagement after OHR. This EUSR office should be different from the OHR in mandate, size and overall approach.
Mandate
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The revised EUSR mandate should continue to concentrate on political and security-related issues, including tasks related to the ESDP missions as well as residual responsibilities of the Dayton/Paris Peace Agreement. The EUSR should offer political advice and facilitate political and legal processes, in particular with respect to constitutional reform where the EUSR will play a central role. Towards this end, the EUSR should monitor local political developments, and engage actively to promote relevant reforms.
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In addition, the EUSR should play a role in promoting the Rule of Law, in particular with respect to police restructuring; support to the fight against organised crime, where EUPM plays the leading role on policing aspects; and promoting full cooperation with the ICTY. The EUSR should also contribute to the development and consolidation of respect for human rights and fundamental freedoms, in support of the objectives set out in Article 11 of the Treaty of the EU.
The EUSR should assist in consolidating security sector reforms, in coordination with other international actors. Careful co-ordination with the mission reviews of EUFOR and EUPM will be required when planning for the future EU engagement in BiH. The EUSR should be mandated to ensure coherence between ESDP actors in theatre. The EUSR will offer political guidance to the Commander of EUFOR on military issues which have a political aspect, inter alia, sensitive military operations, relations with local authorities, and relations with the local media. The mandate would be designed to ensure maximum coherence without prejudice to the military chain of command. In case of disagreement between the EUSR and the Commander of EUFOR, the latter would refer the matter to his military chain of command.
The EUSR should carry on the High Representative's co-ordinating and unifying role after the transition - within the EU family and, we suggest, also within the international community as a whole.
With the European Commission, the EUSR should work with the Bosnia and Herzegovina authorities to make progress in the Stabilisation and Association process through the implementation of key reforms and European Partnership priorities. The EUSR's formal mandate would have to respect Treaty responsibilities, however, and be co-ordinated with the Commission to ensure consistency with relevant activities falling under Community competence. It should also be coordinated with other key stakeholders on the ground.
Residual OHR Tasks
The OHR's Mission Implementation Plan will be substantially, but not entirely, completed by June 30th, 2007. Certain residual tasks look likely to remain, notably in the areas of Rule of Law (including assisting the ICTY, as needed), and security sector reform. Without prejudice to decisions by the PIC Steering Board, the EU should consult with the OHR, the BiH authorities, and other partners during the spring of 2007, to ensure that these tasks will be followed up effectively after the closure of OHR.
EUSR Office
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The size of the EUSR office is a decision for the Council. It will depend on the EUSR mandate and on the future delineation of tasks between the EU actors on the ground. It will also depend on Council and Commission decisions with respect to double-hatting of the EUSR and the EC Head of Delegation and the envisaged co-location of their offices.
Implementation of a mandate like the one set out above would depend on a significant political and legal staff, including expert advisers on police restructuring and constitutional reform. A substantial press and public information capability would be required. The EUSR would also need advisers on specialised topics such as the Rule of Law and human rights, and as appropriate, for other areas covering his wider co-ordination responsibilities. Given BiH's decentralised political set-up, the EUSR requires presences in Mostar and Banja Luka.
Based on the above, the size of the EUSR office would arrive at approximately 100-120 persons, including national staff, assuming that co-location between the EUSR Team and the Commission Delegation goes ahead. Double-hatting/personal union of the EUSR and the Commission Head of Delegation could reduce this number.
The EU should initiate discussions with the OHR and PIC Financial Experts as soon as possible on a transfer of relevant capital assets from the OHR to the EUSR.
V. LEGAL ASPECTS
Although the reinforced EU presence after OHR could build on existing arrangements and agreements with the BiH authorities, UN Security Council endorsement of a strengthened EUSR role would help maintain the international coalition that supported OHR's work. This endorsement could be built into the same UN Security Council Resolution that will eventually end the High Representative's mandate.
Termination of the High Representative's mandate will not mean that all civilian aspects of the Dayton/Paris Peace Agreement have been completed. Peace implementation will continue after the OHR has closed, and the rights and obligations of the signatories will remain. Certain of the High Representative's non-executive responsibilities may therefore remain relevant in future, such as monitoring implementation of the peace settlement; maintaining close contact with the Parties to promote their full compliance with all civilian aspects of the peace settlement and a high level of cooperation between them and the organizations and agencies participating in those aspects; reporting periodically to the UN Security Council on progress in implementation; and serving as the final authority in theatre regarding interpretation of the Agreement on civilian implementation of the peace settlement.[1] The EUSR would be the logical choice to assume these responsibilities, should the EU and the UN Security Council agree on their continued utility. This would ensure continued international support for civilian implementation complementing EUFOR's role in the military field. It would also strengthen international community support for the EUSR. BiH's consent would be required ahead of time, as would careful media handling to avoid any misperception that the EU was seeking the "continuation of the OHR by another name."
The future of the Bonn Powers remains a matter for the PIC. We continue to assume that the situation in BiH and the region will allow the Bonn Powers to be terminated with the closure of the OHR; this would be the natural course of events and in line with EU principles. We would advise against the EU seeking to acquire executive powers similar to those enjoyed by the High Representative, or otherwise trying to keep the Bonn Powers beyond the tenure of the OHR. The possibility of changing our course of action on the transition remains, as set out in section II above, in the context of the February 2007 PIC Steering Board review.
VI. EU COHERENCE
As suggested in our June Report, a reinforced EU engagement in the context of the closure of the OHR offers a unique opportunity to rationalise structures and achieve greater unity of effort. In line with the HR/SG's paper (agreed with the Commission) to the December 2005 European Council on improving EU co-ordination in the Western Balkans (S416/05), we should seek "a more unified structure" in Bosnia and Herzegovina "under strong and sensitive political leadership." Furthermore, the European Council of June 2006 welcomed the Commission's communication "Europe in the World", suggesting the double-hatting of Heads of Delegations and EU Special Representatives, where appropriate, in the Western Balkans.
The option of co-locating the EUSR offices and the EC Delegation in Sarajevo is already being explored, and the joint premises could be ready in the last quarter of 2007. This would be an important first step. Co-location of EUSR colleagues with other EU actors could also take place in Banja Luka, Mostar and elsewhere.
The Council and the Commission should consider combining the functions of the future EUSR and the Commission Head of Delegation at the appropriate time - in a form of "personal union" or "double-hatting" arrangement, building upon the positive experience from Skopje. We believe this would ensure a more unified approach, greater coherence, and the possibility of leveraging the Union's influence to the maximum extent. It would also lead to a leaner and more cost-effective EU structure.
The question of timing deserves careful consideration. Double-hatting could be introduced immediately after the closure of the OHR - we understand that it is the view of the EUSR that it should take place at the earliest possible opportunity. If we decided to follow this course, decisions would be needed in the next couple of months to enable timely preparations. Alternatively, double-hatting could be phased in gradually at a later stage as part of a progressive rationalisation of the Union's presence.
Given the magnitude of the EU's involvement in BiH after OHR, a key challenge will be to ensure continued close co-ordination and coherence of all EU actors/instruments in Bosnia and Herzegovina. Towards this end, internal EU co-ordination should be reinforced. Regular meetings of the EU Heads of Missions, where the EUSR and the Commission Head of Delegation, as well as the EU Force Commander and the EUPM Head of Mission participate, will assume a central political co-ordination function. The EUSR will continue to chair regular informal meetings of EU operational actors in Bosnia and Herzegovina (EUFOR, EUPM, Commission Delegation, EUMM, and EU Presidency).
As Bosnia and Herzegovina prepares itself for life without the "Bonn Powers," key reforms - including police restructuring - still lie ahead. Many of these reforms are conditions for progress in the Stabilisation and Association process. The Union's readiness and ability to speak with one voice and apply whatever pressures we can mount will be key to maintain momentum and keep reform on track.
As noted above, planning for the future EUSR engagement in BiH will need to be closely co-ordinated with the autumn 2006 EUPM and EUFOR mission reviews. EUFOR is working on proposals to change its posture, and a Council decision in principle is expected in December 2006. The EU Police Mission will continue its mandated activities during the transition period including support for the fight against organised crime, police accountability and police restructuring. The EUSR will provide an updated Mandate Implementation Plan at the end of November. Coherence and co-ordination between these different review processes will be key. The EUMM should be able to phase out its BiH operation by the time the EUSR office reaches full operating capability.
VII MAINTAINING THE (P)IC COALITION
Keeping the wider international community engaged as a group with the EU, rather than individually with BiH, will be crucial to continued progress.
The Peace Implementation Council Steering Board has played a central role in co-ordinating the international community's efforts in BIH since the war and ensuring a united voice. The Board of Principals (BoP), including the main agencies involved in the implementation of the Dayton/Paris Agreement, remains an important co-ordination forum as well. Maintaining this IC coalition, which has been key to success in BiH so far, would be extremely valuable.
The PIC Steering Board adopted a "recommendation" on 23 June 2006, on future co-ordination arrangements. It endorsed a central co-ordinating role for the EUSR, and proposed the creation of a new coordination body that would bring together the members of the current BoP and the PIC Steering Board Ambassadors under EUSR chairmanship, without prejudice to the established chain of command for the EUSR.
The EU should support a continuation by the EUSR of the High Representative's role in co-ordinating the international community, without prejudice to the EUSR's established chain of command. Discussions with our PIC and BoP partners should continue in coming months with a view to arriving at practical arrangements on the ground, building on the PIC Steering Board's recommendation.
The EU should also pursue the possibility of having third country nationals in the EUSR office. Precedents from existing EU missions, which are also financed out of the CFSP budget, could be adapted for the purpose.
VIII. COMMUNICATIONS STRATEGY
The closure of the OHR and the transition to increased BiH ownership supported by a reinforced EU presence will need careful media handling. Targeted messages and information campaigns will be needed for BiH audiences and for the international press for each of the three main phases of the transition process: 1) the early preparation process ahead of the February 2007 PIC Steering Board meeting; 2) the lead-up to the transition after February 2007; and 3) the transition itself.
The Council Secretariat, with the Commission, in close consultation with the OHR/EUSR will elaborate an information strategy.
IX. RECOMMENDATIONS
We recommend that the Council:
- endorses the mandate elements and approach set out in this report and tasks relevant Council preparatory bodies to take work forward on a revised Joint Action and financial statement for the EUSR in BiH, and also to prepare the necessary instruments to allow third state staff contributions to the EUSR office after the closure of the OHR. This would enable planning to begin.
- invites the Council Secretariat and the Commission, with the EUSR in BiH, to initiate talks with the OHR and PIC Steering Board Financial Experts about a transfer of relevant capital assets from the OHR to the EUSR office;
- invites the Council Secretariat with the Commission, in close co-operation with the OHR/EUSR, to prepare an information strategy for the transition from the OHR to a reinforced EU presence. This information strategy would need to be updated on a regular basis to take account of developments in Brussels and the region.
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Consultations will continue in coming months with the PIC, the High Representative/EUSR Dr Schwarz-Schilling, the BiH authorities and key stakeholders, as planning proceeds. We will keep the Council informed in this regard.
ANNEX I: PROPOSED WAY AHEAD
16-17 October GAERC discussion of this assessment
19-20 October PIC Steering Board Meeting in Sarajevo; further discussion of the OHR close-down
end-October Situation Centre publishes Situation Assessment on BiH
end-October Council Secretariat and Commission initiate discussions with OHR about transfer of capital assets
08 November Commission issues annual SAp Progress Report on BiH
early November Council Secretariat and Commission present initial information strategy for the transition from OHR to a reinforced EU presence
mid-November EUSR BIH Mandate Implementation Review Report due
mid-November Council working bodies initiate work on renewal/revision of the EUSR Joint Action and Financial statement
11-12 December GAERC: HR/SG Report on the Operation Althea Fall Mission Review
14-15 December European Council
January 2007 Council adopts EUSR BiH Joint Action and Financial Statement, which will enter into force on 01 March 2007
February 2007 PIC Steering Board meets to review and confirm its decision to close the OHR by June 30 2007
Spring/Summer Council adopts amendments to the EUSR Joint Action and Financial
2007 Statement to take account of the February PIC Steering Board Decision
Spring 2007 UN Security Council Resolution ends the mandate of the High Representative in BiH, endorses a reinforced EUSR role.
30 June 2007 OHR Closes
[1] General Framework Agreement for Peace in Bosnia and Herzegovina (1995), Annex X: "Agreement on Civilian Implementation of the Peace Settlement".