BOSNIA - IT IS TIME TO PUT BRCKO BACK ON THE

UNCLAS SECTION 01 OF 02 SARAJEVO 001577 SIPDIS SENSITIVE SIPDIS DEPARTMENT FOR EUR (DICARLO),EUR/SCE (HOH/FAGAN/STINCHCOMB),AND L/EUR (MANSFIELD E.O. 12958: N/A TAGS: PGOV PREL PINR BK SUBJECT: BOSNIA - IT IS TIME TO PUT BRCKO BACK ON THE POLITICAL AGENDA REF: A. 06 SARAJEVO 2397 ¶B. 06 SARAJEVO 2199 ¶1. (SBU) SUMMARY: Since the Peace Implementation Council's December 2007 decision not to close OHR, our central concern regarding Brcko has been the District's disput%&QJkQQ! of Brcko's relationship with the State (Ref A). With the ITA dispute behind us, it is time to refocus our energies on putting in place the mechanisms that would allow the Brcko District Supervisor to notify the Tribunal that the conditions of the Final Award have been met and the High Representative to recommend to the PIC the termination of the Supervisory Regime. The core elements of our strategy remain those issues identified by the Working Group on the Status of Brcko District in June 2006, particularly adoption by the State-level parliament of the amendments to the Law on the Council of Ministers (CoM) and the draft Law on the Brcko District. Since last fall, there has been encouraging progress on the former, but we have learned after preliminary consultations with political leaders that the latter would have to be supplemented by a package of constitutional amendments. Unfortunately, Brcko politics have been complicated by the Tribunal's decision to issue an Addendum to the Final Award that threatens to derail the progress made by the Working Group as well as undercut our broader objectives in Bosnia. We would like to be in a position to close out the Supervisory Regime by the end of ¶2008. Getting there will require a concerted push on Brcko this fall, including another meeting of the Working Group in September. END SUMMARY Law on the CoM Moving Towards Final Passage -------------- ¶2. (U) The Amendments to the Law on the CoM would provide a legal basis for the office of the Coordinator of Brcko District in the CoM, which was established in 2005 by a political agreement between then PM Adnan Terzic and Brcko Mayor Mirsad Djapo. The Brkco District Office facilitates communication between the Council and the District and provides much-needed representation to Brcko in the executive and legislative branches of government. The amendments were approved by the BiH House of Representatives (HoR) in their first reading on July 4, 2007. We anticipate minor changes to them before they are submitted to the HoR for a second reading, at which point they would go to the House of Peoples for consideration. An attempt to pass the amendments in September 2006 was blocked by the Bosnian Serbs (Ref B),but we anticipate no problems this time. Draft Law and Constitutional Amendments on Brcko -------------- --- ¶3. (SBU) After the Working Group completed its negotiations over the draft Law on the Status of Brcko (Ref A),Brcko Supervisor Raffi Gregorian met with Bosnian political leaders to discuss the importance of regularizing the legal status of Brcko's relationship with the State. At the time, political leaders accepted the need to address these issue before international supervision of the District could end. However, several key political leaders suggested that essential provisions of the law, such as those that would provide Brcko with access to the Constitutional Court and some form of representation in the Bosnian parliament, were unconstitional. These leaders indiciated a willingness to consider a modified version of the draft law along with a package of constitutional amendments to resolve Brcko's status. In light of these exchanges, OHR-Brcko prepared a package of possible constitutional amendments, which it has shared with the Embassy in its capacity as Chair of the Working Group (Note: We have provided L/EUR with an a copy of them via e-mail). ¶4. (SBU) Our assessment is that any constitutional amendments should focus on key issues identified from previous exchanges within the Working Group, namely providing for a direct reference to Brcko in the constitution, providing for Brcko's representation in parliament, and ensuring Brcko's access to the Constitutional Court. (Note: It will likely be important SARAJEVO 00001577 002 OF 002 that constitutional reference to Brcko describe it as held in "condominium by both entities" in order to secure support from Republika Srpska MPs. This is the language used in the Final Award itself, so it should be acceptable to Brcko and Federation MPs. End Note). As was the case with OHR-Brcko's proposals for the draft law, their proposed constitutional amendments go well beyond these three areas. Out of the Blue: An Addendum to the Final Award -------------- -- ¶5. (SBU) The Tribunal's decision to isssue an Addendum to the Final Award on June 25 has complicated Brcko politics and will likely make U.S. efforts to secure political agreement on a package of amendments and a modified draft law more difficult. The Addendum approved the OHR-imposed solution to Brcko's ITA dispute and terminated the pending proceeding on it. However, it also established Brcko's right to consent to any transfer of competencies by the entities to the State, if that transfer has the effect of significantly diminishing the ability of the District to function as single, unitiary, multi-ethnic, democratic government for the Brcko Opstina. The ruling presents serious practical political problems. ¶6. (SBU) The obvious practical concern is that the Tribunal offers no guidance as to who will determine whether a tranfer of competency would be detrimental to Brcko in the manner identified by the Addendum. The most likely candidates -- the Brcko Supervisor or the Tribunal -- should be disbanded by the end of 2008. The much more serious political problem is that the Addendum, by giving Brcko the right to sanction any transfer of competencies to the State, appears to make Brcko a de facto third entity. Also, by not making any distinction between past and future transfers of competency, and the Addendum appears to provide Brcko with an avenue for challenging past reforms, such as the High Judicial and Prosecutorial Council (HJPC). ¶7. (SBU) Not surprisingly, Brcko officials are quite pleased with the Addendum. It provides them with precisely what they were demanding during Working Group negotiations over the draft law, a de facto veto on changes to their competencies. OHR-Sarajevo was shocked and outraged by the Addendum. OHR-Sarajevo's understanding was that there was a political agreement to find a satisfactory resolution of Brcko's ITA dispute outside the Tribunal. This would result in dismissal of the ITA-related proceedings, which would, in turn, make a ruling on the larger question of transfer of competencies unnecessary (Note: That was the Embassy's understanding as well. End Note). Representatives from the entities are also angry about the Addendum, and according to OHR, they have suggested that they are now considering legal challenges to provisions of the Final Award itself. Comments and Recommendations -------------- ¶8. (SBU) While the fate of the Supervisory Regime and OHR are not legally connected, we continue to believe that the Supervisory Regime should end at about the same time time OHR finally closes. Therefore, just as we geared up in fall 2006 to resolve Brcko's status in anticipate of OHR's closure in summer 2007, we now need to plan to put Brcko back on the political agenda this fall in order to prepare for OHR's closure in summer 2008. We also continue to believe that passage of the draft law, now along with constitutional amendments, would be insufficient for the Supervisor to certify that the conditions of the Final Award have been met. The Supervisor, correctly in our judgment, will want to ensure that the law and amendments are implemented. This means securing their passage by early 2008 to allow the Supervisor sufficient time to make that judgment. With this in mind, we anticipate that the Working Group will have to meet in September to negotiate a final version of the amendments and make corresponding changes to the draft law. That said, the Tribunal's Addendum has grealty complicated the task, and we will need to develop a strategy for addressing it and the inevitable political fallout it generates once the Bosnian body politic fully grasps its significance. MCELHANEY