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IdentifierCreatedClassificationOrigin
07SARAJEVO2406 2007-11-08 15:27:00 CONFIDENTIAL Embassy Sarajevo
Cable title:  

LEGAL TALKS CONCLUDE - DODIK LOOKS HEADED FOR

Tags:   BK PGOV PREL 
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					  C O N F I D E N T I A L SARAJEVO 002406 

SIPDIS

SIPDIS

DEPARTMENT FOR EUR (DICARLO), EUR/SCE (HOH/FOOKS), NSC FOR
BRAUN

E.O. 12958: DECL: 11/07/2017
TAGS: BK PGOV PREL
SUBJECT: LEGAL TALKS CONCLUDE - DODIK LOOKS HEADED FOR
CONFRONTATION


Classified By: Ambassador Charles English. Reasons 1.4 (b), (d)

Summary
-------



1. (C) On November 6, talks between OHR lawyers and RS
government experts, with the goal of resolving RS concerns
over the High Representative's October 19 measures, concluded
without agreement. The same day, the OHR Legal Advisor, on
instructions from the High Representative, informed Steering

Board Ambassadors that OHR had offered to include a legally
binding "authentic interpretation" attached to the text of
the Bonn Powers imposition, providing additional
clarification not included in the original October 19
announcement. The OHR Legal Advisor added that the High
Representative believed the talks had gone as far as possible
and it was now up to the RS government to accept or reject
the interpretation. Lajcak said that Dodik had agreed to
provide a response by November 9. In response to RS demands,
the interpretation includes provisions giving an initial role
to the entities in forming a Council of Ministers quorum.
This language, if accepted, could simultaneously be trumpeted
by Dodik as a key concession and aggravate Bosniak political
leaders, particularly Silajdzic. Despite this extraordinary
attempt to forestall an RS boycott, the High Representative
is nonetheless increasingly of the belief that Dodik is
determined to engineer a confrontation with OHR and the
international community. In this context, OHR will broach at
the November 8 Quint talks the use of punitive measures by
PIC capitals in response to Dodik's anti-Dayton behavior.
End Summary.

The October Measures


--------------------------





2. (C) Since the October 19 announcement by the High
Representative of his intention to impose changes in the law
on the Council of Ministers and the Rules of Procedure for
Parliament, Serb political leaders have maintained that the
measures create the possibility for Federation-based parties
to convene the Council of Ministers (CoM) and approve
decisions without the presence of Serb representatives.
Despite an October 26 "explanatory note" from the High
Representative to RS officials specifying that existing
parliamentary safeguards of constituent peoples' interests,
such as entity voting and vital national interest vetoes,
remain in place, RS officials have been adamant in asserting
that the possibility exists for the RS to be bypassed in
approving legislation and government decisions.

Legal Talks: Background


--------------------------





3. (C) Legal discussions have been ongoing since the RS
government and the RSNA on October 29 rejected the High
Representative's explanatory note. On November 6 the OHR
Legal Advisor, on instructions from the High Representative,
told the PIC Steering Board Ambassadors that in the final
session of the legal talks OHR lawyers had offered Dodik a
proposal to issue an "authentic interpretation" of the
measures. This interpretation, which would have legal
standing through its association with the decision, would
specify that, in order to convene a session of the Council of
Ministers, at least one member of each constituent people and
one member from each entity must be present. If these
conditions cannot be met, the interpretation would oblige the
Chairman to postpone the session for seven days after which
the original terms of the October 19 measures would apply,
specifically that quorum requirements would be met as long as
one member of each constituent people was present, with no
mention of any requirement for entity representation.

A New OHR Concession


--------------------------





4. (C) The interpretation was designed to counter RS
objections that the October 19 measures raised the
possibility that a hypothetical Serb Minister from a
Federation-based party in some future government could be
used to achieve a quorum, thereby allowing the CoM to bypass
RS representatives. Although RS parties could still avail

themselves of Parliamentary procedures on entity voting or by
invoking a vital national interest veto to prevent the
adoption of legislation under these circumstances, OHR
resolved to provide Dodik with the maximum latitude to
declare that RS concerns had been resolved. OHR tells us
that while there is no precedent for a High Representative
supplementing a Bonn Powers imposition with a binding
interpretation, the mechanism is legal and consistent with
his mandate.

Entity Provisions


--------------------------





5. (C) The last-minute inclusion of the provision ensuring
entity participation on the CoM responded to a broader
proposal by SNSD representatives early in the legal
discussions. By acquiescing to such a measure the High
Representative, in effect, has codified a protection of
entity rights in the Council of Ministers where none existed
before. We must note, however, that such a provision
requires only that the CoM session in question be postponed
seven days, after which the session can be convened with only
one member of each constituent people as provided in the
Lajcak measures. OHR staff have acknowledged to us that the
step was "pushing the limits" but demonstrated the High
Representative's determination to go "as far as humanly
possible" to avert a confrontation.

Mixed Signals from Dodik


--------------------------





6. (C) Since the beginning of RS-OHR legal talks, statements
by Milorad Dodik regarding his willingness to de-escalate the
crisis have varied widely depending on the venue and
interlocutor. The High Representative told the Ambassador
that during a November 6 meeting Dodik appeared set on a
course of confrontation. Incongruously, during a meeting
with the Ambassador that immediately followed the meeting
with Lajcak, Dodik stressed he was seeking to avoid
confrontation and aware that he would ultimately have to
accept the October 19 measures with no mention in the
decision of an entity role in the CoM. Although Dodik
committed to the High Representative that he would deliver a
formal response to the interpretation by November 9, in
public statements Wednesday he seemed to lean toward
rejection, stating that legal interpretations were
insufficient to eliminate the possibility of outvoting in
state institutions. His tone in recent days, though, has
been more moderate than in previous statements. It remains
possible that he could spin the "authentic interpretation" as
part of the decision proper, thus claiming an effective
modification of the decision.

The Way Forward


--------------------------





7. (C) On balance, it appears likely that Dodik will engineer
a confrontation with OHR and will reject the offer of the
authentic interpretation. This will raise the tactical
question of how to proceed both in our interactions with OHR
and bilaterally with the RS. An outright rejection would, in
our view, require punitive measures against Dodik both by the
HiRep and by PIC Steering Board Members. During a digital
video conference with the Quint on November 8, the High
Representative will raise for the first time "red lines" that
would trigger actions such as the imposition of sanctions
against Dodik.

Comment


--------------------------





8. (C) In meeting Dodik's demand to include mention of the
entities in the legal interpretation of the October 19
measures, the High Representative has simultaneously given
Dodik a face-saving concession and given an opportunity to
Bosniak political leaders, particularly Silajdzic, to enter
the debate in unhelpful ways. If Dodik accepts the
interpretation he will have achieved the introduction of a
provision, nominal as it may be, that offers an explicit role
to the entities in the executive branch of state level
government. Dodik would have the option of using this

concession as a public relations victory in his efforts to
protect the legal status of the RS. At the same time the
introduction of such language will be anathema to Haris
Silajdzic and SBiH who will surely spin it as another
legitimization of the RS as a creation of genocide.



9. (C) Comment Continued: If Dodik refuses the HiRep,s
forward-leaning compromise and forces a confrontation, we
must be prepared to respond with sanctions, calibrated to the
actions he pursues to frustrate the workings of Bosnia's
state-level institutions. We understand that Washington is
now considering a package of possible measures. We ask for
swift approval, to allow us to provide the HiRep with our
full - and meaningful - support as he attempts to enforce his
authorities under the Dayton Accords. Our ability to respond
in such support is critical to the HiRep's credibility - and
to our ability to assure that Bosnia-Herzegovina remains a
viable state. End Comment.
ENGLISH