BOSNIA - PIC SPLITS OVER DODIK CHALLENGE TO

C O N F I D E N T I A L SECTION 01 OF 03 SARAJEVO 001530 SIPDIS NOFORN DEPARTMENT FOR EUR(JONES), EUR/SCE(HYLAND/SILBERSTEIN/STINCHOMB); NSC FOR HELGERSON/WILSON E.O. 12958: DECL: 01/01/2017 TAGS: PGOV PREL PINR KDEM KJUS KAWC BK SUBJECT: BOSNIA - PIC SPLITS OVER DODIK CHALLENGE TO STATE-LEVEL LAW ENFORCEMENT AND JUDICIAL INSTITUTIONS REF: SARAJEVO 1519 Classified By: Ambassador Charles English. Reason 1.4(b) and (d). ¶1. (C) SUMMARY: The Peace Implementation Council (PIC) Steering Board Ambassadors (SBA) met on September 26 to discuss its response to the Republika Srpska (RS) government's conclusion that the RS administration and administrative organizations are not obligated to provide SIPA documents in connection with an investigation ordered by the BiH State Prosecutor. High Representative Lajcak had written RS PM Milorad Dodik on September 24 expressing "grave" concern about the conclusion and warning that it must be brought into line with Bosnian law. Lajcak told the SBA that he had spoken by phone with Dodik and that Dodik had sent a reply to Lajcak's letter. Dodik, Lajcak reported, had made clear that he would not amend or withdraw the RS government conclusion. Dodik's letter offered to comply with the SIPA request, but only under certain conditions. OHR legal experts explained that the RS government had no legal right to "conditionally" implement a subpoena and underscored the challenge the RS government conclusion presented to the rule of law. ¶2. (C/NF) Summary continued: Lajcak proposed that the SBA issue a statement and outlined two options. The first would underscore that the RS conclusions were wrong and had to be brought into line with Bosnian law. The second would note that the RS conclusions were wrong, but also note the RS government's readiness to comply with the court order. The PIC split with the U.S., UK, Germany, Japan, Canada, and Turkey supporting option one; France and the European Commission supporting option two. Russia opposed issuing any statement, and Italy initially supported option one, but shifted towards option two. Lajcak exploded after it was clear that the majority of the PIC favor the "robust option" and demanded to know whether he would have unequivocal support from capitals if option one provoked a crisis with the RS. He also complained that it was "high time" for PIC capitals to decide what the international community's role in Bosnia should be. The SBA ended without consensus on any statement, and as a consequence, Lajcak announced that he ;planned to issue his own statement. As of this writing, we have not seen Lajcak's statement and nothing has been released from OHR. END SUMMARY Dodik Tells the HighRep "No" on Withdrawal -------------- ¶3. (C) The PIC SBA met on September 26 to consider how to respond to the RS governments September 11 conclusion that the RS administration and administrative organizations are not obligated to provide SIPA documents in connection with an investigation ordered by the BiH State Prosecutor. Lajcak informed the SBA that he had spoken with Dodik on September 25 and reiterated that the RS conclusion: 1) violated several state-level laws, 2) undermined BiH institutions; and, 3) constituted explicit political interference with the independence of the judiciary and explicit political interference in operational policing. Lajcak also repeated his written warning that "this conclusion must be brought in line with the laws of Bosnia and Herzegovina." Dodik told Lajcak that the RS government would not amend, cancel or revoke its September 11 conclusion. He said that to do so now would humiliate him politically, something he could not afford before the October 5 municipal elections. Conditional Compliance and a Defiant Warning -------------- ¶4. (C) In a separate letter to Lajcak, which the HighRep shared with the SBA, Dodik asserted that his government was within it rights to refuse SIPA's request and outlined the "legal basis" for the RS government's conclusion. In his letter, Dodik claimed that his government was prepared to comply with SIPA's request but only under certain conditions, such as showing that the case "unequivocally falls within the respective responsibilities of the Prosecutor's Office and SIPA." At a public appearance in Mostar on September 25, Dodik warned that he was prepared to provoke a political crisis if confronted over the issue. "You are familiar with SARAJEVO 00001530 002 OF 003 our conflict last November (i.e., the conflict between the RS and the international community over the October 2007 impositions). If someone wants to have it, we can have it again." Factual Mistakes and Fundamental Flaws -------------- ¶5. (C) OHR legal experts explained to the SBA that both the RS conclusion and the legal arguments contained in Dodik's letter were either factually inaccurate or fundamentally flawed. They underscored that the RS government's assertion of the right to conditionally comply with what amounts to a subpoena was not only against the law, but fundamentally at odds with the rule of law. They also stressed that the RS government's attempt to determine whether SIPA and the State Prosecutor are acting within their jurisdiction undermines Bosnia's constitutional and legal order. The issue of jurisdiction is a matter for the judicial, not executive branch, to decide: in this case for state-level courts, not the RS government, OHR legal experts explained. Furthermore, the RS government has no legal standing to challenge the State Prosecutor's jurisdiction because the State Prosecutor has not filed charges against anyone. A Wobbly HighRep Presents Two Options -------------- ¶6. (C/NF) The HighRep called for an SBA statement on the issue and outlined two options. Lajcak described them; he did not table alternative drafts. The first would echo the HighRep's letter by underscoring that the RS conclusions were wrong and had to be brought into line with the laws of Bosnia and Herzegovina. It would also call upon Dodik to comply with SIPA's court order. The second would note that the RS conclusions were wrong, but -- in a reference to Dodik's letter -- note the RS government's readiness to comply with the court order. Prior to the SBA, several OHR staff -- please protect -- informed us that the HighRep preferred the second option. They also told us that the HighRep was prepared to publicly acknowledge "differing legal interpretations" despite his Legal Department's warning that legitimating the RS's flawed legal arguments would have profound consequences on the ability of state-level law enforcement and judicial institutions to function in the RS. We were told that the conversation ended with the HighRep screaming at OHR staff from both the Legal and Political Departments. The PIC Splits -------------- ¶7. (C) The Russian Ambassador was quick to intervene. He criticized Lajcak for sending his September 24 letter to Dodik and rejected both options one and two; he would not support any statement. The Russian argued that the international community needed to provide local actors the space they required to sort out this problem, asserting that this would involve the RS and SIPA settling their differences in court. (Note: OHR legal experts explained that if a subpoena is not complied with, the next step is for SIPA to forcibly deliver it and seize the documents the Prosecutor's Office has requested, not to have a court rule on the subpoena's validity. End Note) The French and EC Ambassadors endorsed issuing a joint statement, but said that they preferred option two. The French Ambassador argued that the SBA should acknowledge that the RS has said it is willing to cooperate with SIPA even as she noted the RS's challenge to the rule of law "at the most basic level." The EC Ambassador labeled Dodik's letter "major progress." ¶8. (C) The British Charge argued forcefully that the RS conclusion was part of a pattern of conduct aimed at undermining the state and its institutions that goes back almost two years. She also noted that the PIC had set the "rule of law" as one of the five objectives required to end OHR's mandate, stressing that the RS conclusion should "shatter any illusions that the rule of law is operating in the RS." (Note: In an unrelated briefing at the beginning of the SBA, the EU Police Mission reported that it was increasingly concerned with RS government attempts to SARAJEVO 00001530 003 OF 003 undercut state-level law enforcement institutions. End Note) The British Charge closed by calling for the HighRep to annul the RS conclusion, if the RS refuses to do so itself. Though they did not endorse the use of the Bonn Powers, the German, Turkish, Canadian, and Japanese Ambassadors all supported option one. (Note: Italy initially supported option one, but its positioned shift towards favoring option by the conclusion of the PIC. End Note) ¶9. (C) The Ambassador underscored U.S. support for the HighRep, including his decision to send a letter to Dodik outlining the profound problems with the RS conclusion and endorsed option one. He argued that a critical PIC objective had to be ensuring that the RS complied with SIPA request "unconditionally, completely, and immediately." He challenged the Russian assertion that the issue was outside the PIC's competence, noting the PIC's mandate included preserving security and stability in Bosnia and upholding the Dayton constitution. A conflict between SIPA and the RS police over enforcement of the subpoena risked the former, and the RS legal assertions undercut the later, the Ambassador explained. Lajcak Explodes -------------- ¶10. (C/NF) As it became clear that there was a preference among the majority of PIC members for a robust response Lajcak exploded, demanding to know whether those Ambassadors who supported option one had clear authority from their capitals to open a crisis with the RS over the issue. Lajcak added that he would "not tolerate" a repeat of the October 2007 crisis where he was assured repeatedly by PIC countries that they support him only to have them pull back at the last minute and leave him dangling. Continuing, Lajcak argued that it was "high time for capitals to decide what the international community's role was in Bosnia," adding, "otherwise we will fight among ourselves here (i.e., at the SBA) every week." Lajcak complained that the international community's indecisiveness was "making us look ridiculous." "Either there is a need for an OHR or there isn't. Tell me my role," he demanded. Given the absence of consensus, Lajcak announced that he would issue his own statement, implying that it would resemble his proposed option two. Comment -------------- ¶11. (C) We have not yet seen Lajcak's statement, which has not yet been released. It is likely that whatever is contains it will start us down the path towards confrontation - either too hard for the Serbs or too soft for the Bosniaks. The RS and Dodik are apparently setting the stage for a new confrontation. It is possible it could develop into a serious political challenge to the Peace Implementation Council, if not an existential challenge to Bosnia and Herzegovina. ENGLISH