BOSNIA: OHR TAKES ACTION TO END THE BRCKO

C O N F I D E N T I A L SECTION 01 OF 02 SARAJEVO 001110 SIPDIS NSC FOR HOVENIER OSD FOR BEIN E.O. 12958: DECL: 09/18/2019 TAGS: PGOV KDEM PINR PREL BK SUBJECT: BOSNIA: OHR TAKES ACTION TO END THE BRCKO SUPERVISORY REGIME REF: A. SARAJEVO 810 ¶B. SARAJEVO 386 Classified By: Ambassador Charles L. English, Reasons 1.4(b),(d) ¶1. (C) Summary: On September 18, High Representative Inzko used his authorities to resolve the remaining issues in order to create conditions under which the Brcko Supervisory Regime can be closed in November. Resolving the issues of succession funds, citizenship, and electricity required the imposition of several laws at the State and Entity levels. Barring any problems in the functioning of the institutions after the OHR action, the Supervisor plans to formally announce November 19 that the conditions have been met for closing the Supervisory Regime. End summary. OHR Action Toward Ending the Brcko Supervisory Regime -------------- -------------- ¶2. (C) There are four outstanding issues that need to be resolved in order to fulfill the requirements of the Brcko Final Award, such that the Brcko Supervisory regime can be dissolved, thus fulfilling one of the five plus two requirements for transition from OHR to EUSR. At the June 2009 PIC meeting, Brcko Supervisor Raffi Gregorian suggested a deadline of September 15 for BiH institutions to resolve outstanding issues, but they failed to take the required steps by that date (Ref A). Due to the failure of domestic institutions to take timely action to resolve three of these issues relating to succession funds, citizenship, and electricity, the High Representative announced shortly after 13:00 local time on September 18 his use of Bonn Powers to impose a set of legal remedies. OHR had also been planning to take action on the mutual debt issue, but may not need to do so as long as the entities honor an eleventh-hour agreement to pay the debts owed to the Brcko District. At a press conference announcing the impositions, Inzko expressed his regret that he was forced to use the Bonn Powers to complete something that the entities have been obligated to do for the last nine years. OHR has not yet published the formal decisions, but they should be made public soon on OHR's website: www.ohr.int. ¶3. (C) The Brcko Supervisor now has approximately 7-8 weeks to observe how the District institutions operate before he may recommend to the Brcko Tribunal that Brcko District institutions function effectively and apparently permanently and thus formally end the Brcko Supervisory regime. The laws imposed today must be published in the official gazettes at the state and entity levels in order for the Supervisor to be able to certify that the terms have been fulfilled for closure of the Supervisory regime. We are told that the Supervisor, should all go well with the imposed solutions, intends to formally proclaim an end to the Brcko Supervisory regime at the next meeting of the Peace Implementation Council on November 19. Three Outstanding Issues and OHR Proposed Remedies -------------- -------------- ¶4. (C) Succession Funds: The Council of Ministers adopted by majority vote on September 14 a proposed law on the distribution of succession funds, which would allocated 3% of the funds to the Brcko District. However, opposition by CoM chairman Nikola Spiric and Finance Minister Dragan Vrankic indicated that the proposed law would not move expeditiously through Parliament, which could have taken months and prevented a timely closure of the supervisory regime. Therefore, OHR imposed the proposed law on succession funds. ¶5. (C) Citizenship: According to the Law on Citizenship, persons from Brcko have to be citizens of either the Federation or the Republika Srpska and should have the right to choose to apply for either one, while the entities should have the right to decide if applicants meet the criteria. However, there are currently no legal mechanisms for Brcko citizens to register in the entities. Although the Council of Ministers organized a meeting with representatives from the RS, the Federation, and Brcko District Government to discuss further steps to solve the citizenship issues, it is clear that this process of amending laws at the entity and state level would have been time consuming. Therefore, OHR imposed a legal remedy for the citizenship issue at the state SARAJEVO 00001110 002 OF 002 and entity levels. ¶6. (C) Electricity: Currently the RS provides Brcko with all its electricity as regulated by a memorandum of understanding. According the final award, each entity should provide 50% of its electricity to the Brcko District. To do this will require amendments to laws at the State and Entity levels and could not have been done in a timely manner. Therefore, OHR imposed the necessary legal changes. One More Issue to Watch -------------- ¶7. (C) Resolving Mutual Debt: According to OHR's estimation the Republika Srpska owes KM 5.7 million to the Brcko District and the Federation owes KM 3.9 million. Whereas the Federation has acknowledged this debt and intends to pay it, the RS had, until recently, protested and refused to pay, as it contended that the Brcko District owes KM 20 million in excise taxes to the RS. OHR had maintained that the issues were separate and that RS must pay its debt. The Brcko Supervisor had made plans to utilize for the first time his authorities under paragraph 8B from the Final Award to order the Indirect Taxation Administration to deduct KM5 million from the tax amount owed to the RS and transfer it to the Brcko District. However, at the eleventh hour, the RS agree to pay the debt owed to the Brcko District. Presently both the Federation and the RS have until October 1 to finalize payment agreements. Should either entity fail to so, the Supervisor may consider imposing a remedy. Formally Ending Supervision -------------- ¶8. (C) We discussed the formal procedures for ending Supervision with OHR's Legal Department. Under the terms of the Final Award, Supervision shall continue until terminated by the Steering Board of the PIC. Furthermore, the Tribunal remains in existence until such time as the Supervisor, with the approval of the High Representatives notifies the Tribunal that the Entities have fully complied with their obligations to facilitate the establishment of the District and District institutions function effectively and apparently permanently. The OHR Legal Department envisions the following sequence of events in order to terminate the Supervisory regime. 1) The Supervisor is satisfied that the two conditions above have been met; 2) After having obtained the approval of the High Representative, he notifies the Tribunal whose mandate then comes to an end; and 3) The matter is then brought to the attention of the Steering Board which terminates the Supervisory regime. Barring any significant problems following the impositions, such as the RS refusing to publish the laws in its official gazette, the Supervisor at present intends to inform the Tribunal on November 19 that the conditions have been met thereby ending the Supervisory regime. A ceremony formally marking the end of the supervisory regime may organized on November 20. (Note: We have heard other interpretations of the Final Award, that do not require further PIC action as per Step 3 above; however we will defer to the interpretation of the OHR Legal Department. End Note) Comment ¶9. (C) This OHR action to impose solutions to the conditions remaining for closure of the Supervisory Regime in Brcko, combined with the successful passage of a constitutional amendment on the status of Brcko District (Ref B),should lead to the end of a successful US-driven successful process to settle the Brcko question. We strongly support the OHR action which, if successful, will also resolve another of the outstanding five plus two requirements needed for OHR closure. However, given Republika Srpska Prime Minister Milorad Dodik's recent increase in anti-state and anti-OHR rhetoric, we may expect strong negative reactions to this use of Bonn Powers. RS opposition to the actions could translate into obstruction in Brcko District institutions or a refusal by the RS to publish the imposed laws in the official gazette. It is also possible that Dodik may take a more pragmatic approach and let this imposition pass by quietly so as bring the closure of OHR one step closer. ENGLISH