BOSNIA - HIGHREP BALKS AT ANNULLING CONSTITUTIONAL

C O N F I D E N T I A L SECTION 01 OF 02 SARAJEVO 000526

SIPDIS

SIPDIS

DEPARTMENT FOR EUR(DICARLO),EUR/SCE(HOH/FOOKS),
S/WCI(WILLIAMSON; NSC FOR BRAUN

E.O. 12958: DECL: 01/01/2015
TAGS: PGOV PREL PINR KAWC BK UN
SUBJECT: BOSNIA - HIGHREP BALKS AT ANNULLING CONSTITUTIONAL
COURT DECISION

REF: SARAJEVO 433

Classified By: Political Counselor Michael J. Murphy. Reason 1.4(b) an
d (d).


1. (U) This is an action message. See paragraph six below.


2. (C) High Representative Christian Schwarz-Schilling
convened a special session of the Steering Board Ambassadors
(SBA) on March 7 to discuss the recently released decision by
the Bosnian Constitutional Court calling on the Bosnian
government to address human rights violations stemming from
OHR's 2004 removal from office of two Republika Srpska (RS)
officials who had abetted war criminals (Reftel). SBA
Political Directors had expressed their concern at the
February 26-27 Peace Implementation Council (PIC) that the
Court's decision directly challenged Dayton, the HighRep's
authority, particularly the Bonn Powers, and several Chapter
VII UN Security Council Resolutions (UNSCR).


3. (C) The HighRep described the Court's ruling as unclear
and contradictory. (Note: The Court called on the Bosnian
government to respect its international obligations,
including those under Dayton, but also concluded that it had
an obligation under Bosnia's constitution and the European
Convention on Human Rights to protect the appellants right to
appeal. End Note). Schwarz-Schilling reported that he was
considering two options: annulling the decision, or issuing
an interpretation of it. The HighRep said he was leaning
towards issuing an interpretation that would provide the
Bosnian government with a means of implementing the decision
consistent with Dayton and UNSCRs. Before acting, however,
Schwarz-Schilling said he planned to consult with human
rights experts at the Council of Europe, the Venice
Commission, OSCE, and the United Nations, noting that he had
already sent a letter on the issue to the President of the
Security Council.


4. (C) Two concerns were driving his preference for an
interpretation, Schwarz-Schilling explained. First, he
worried that annulling the decision would undermine the
Constitutional Court, something he wished to avoid. Second,
he accepted that there were legitimate human rights concerns
associated with use of the Bonn Powers for removals that
needed to be addressed. OHR staff explained that the
interpretation, which would have the force of law, could
involve directing the Bosnian government to implement the
decision by requesting that the PIC or OHR set up a review
mechanism to address the issues raised by the Constitutional
Court. The PIC or OHR could then simply acknowledge that the
Bosnian government had brought the issue to its attention.
(Comment: After the meeting, OHR staff suggested the
interpretation could take another form, but did not offer
specifics. Whatever form an interpretation took, we doubt the
HighRep, given his past behavior, would simply ignore the
Bosnian government's response to it. End Comment.)


5. (C) The SBA agreed with OHR's analysis that the
Constitutional Court's decision had serious implications for
use of the Bonn Powers. Bosnian authorities could establish
their own review mechanism to block HighRep removal
decisions, judicial authorities could review and overturn
such decisions, and/or administrative authorities could
refuse to implement them. There was a general consensus that
OHR needed to act forcefully to confront this challenge,
though only Japan and Turkey joined us in arguing that the
HighRep should annul the Court's decision. France and Italy
urged the HighRep to be assertive, but did not explicitly
endorse either of the HighRep's proposals. The UK indicated
that an interpretation might be acceptable, but not along the
lines described by OHR staff. Russia rejected the
Constitutional Court's authority to review the HighRep's
decisions and challenge UNSCRs, but suggested the issue might
be best addressed by the Security Council. Others were
largely silent.


6. (C) Action Request: The HighRep does not appear prepared
to take a clear stand on this issue or to act forcefully to
defend Dayton. Instead, he has made human rights concerns
about the Bonn Powers an issue of equal significance to
preserving the authority of the Bonn Powers themselves. His

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interpretation proposal, which in our judgment falls short of
addressing the concerns raised by the PIC in February, would
put the onus others to act (i.e. the PIC). We will have to
push him hard to secure an outcome that protects Dayton and
does not undercut our efforts to ensure Bosnian authorities
cooperate fully with ICTY. In this context, it would be
useful to have soonest a clear statement from Washington that
we could deliver to him.

MCELHANEY