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