BOSNIA - TIME TO SEIZE AN OPPORTUNITY ON BRCKO

C O N F I D E N T I A L SECTION 01 OF 03 SARAJEVO 000134

SIPDIS

DEPARTMENT FOR EUR(JONES),EUR/SCE(FOOKS/STINCHCOMB); NSC
FOR HELGERSON/WILSON

E.O. 12958: DECL: 01/01/2017
TAGS: PGOV PREL PINR KDEM BK
SUBJECT: BOSNIA - TIME TO SEIZE AN OPPORTUNITY ON BRCKO

REF: A. SARAJEVO 107

B. SARAJEVO 70

C. 07 SARAJEVO 1655

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


1. (C) SUMMARY: On January 26, the three main party leaders
met and agreed on a text for a constitutional amendment on
Brcko District. The text is similar but not identical to
the text proposed by the Brcko District Supervisor (with
strong U.S. support). An OHR legal review has determined
that several technical changes are required to it if it is to
meet the conditions necessary for ending supervision. We
have met with Republika Srpska (RS) Prime Minister Milorad
Dodik twice over the last week to discuss some proposed
modifications to the text. This effort was complicated by
the Republika Srpska (RS) PM Milorad Dodik's decision to try
and bypass OHR by asking his Washington-based lobbyist to
secure the Chairman of the Brcko Arbitral Tribunal's
endorsement to an uncorrected text. At this point, Dodik is
insisting that the final text include language that provides
a modicum of protection against ethnic outvoting. Though we
understand that the Tribunal Chairman has concerns about this
language, we believe that we have reached Dodik's bottom
line. Provided Dodik accepts the other changes required by
OHR, we recommend accepting it. Otherwise, we assess that we
risk losing the prospect of an amendment altogether. Unless
otherwise instructed, we plan to work with OHR over the next
week to finalize a text with assuaging concerns on outvoting.
END SUMMARY

Dodik, Tihic, Covic Agree on Brcko Amendment
--------------


2. (SBU) On January 26, Milorad Dodik, Sulejman Tihic, and
Dragan Covic publicly -- and in writing -- endorsed resolving
outstanding issues associated with Brcko via a constitutional
amendment (Ref A). They also endorsed the text of a three
paragraph amendment. The first paragraph defines the Brcko
District; the second provides the BiH Constitutional Court
with jurisdiction over disputes between Brcko and the
entities and between Brcko and the state. The third provides
Brcko with direct access to the Constitutional Court by
providing a mechanism for the Brcko District Assembly (simple
majority vote) to bring disputes before the Constitutional
Court. The language in these three paragraphs was based on,
but not identical to the text initially drafted and proposed
by the Supervisor (with the strong support of the USG).


3. (SBU) It remains unclear which of the three party leaders
proposed the changes to the Supervisor-approved text. In any
case, a detailed review of the January 26 text by OHR's Legal
Department revealed several problems with some of the changes
proposed by Dodik, Tihic, and Covic. OHR assessed that most
of them could be addressed with technical fixes, however
(e.g., The January 26 draft mentioned only the Final Award,
but the amendment should reference all the decisions taken by
the Tribunal in relation to Brcko, which could be done easily
by referring to the "Awards of the Arbitration Tribunal.")
With this in mind, OHR prepared line-in, line-out comments
that it planned to share with Dodik and his principal Brcko
negotiator, RSNA Speaker Igor Radojicic, in order to finalize
language on the amendment.

Dodik Lobbyists Try to End-Run Negotiation
--------------


4. (C) Unfortunately, rather than allow time for OHR to
review and comment on the text, Dodik directed his
Washington-based lobbyists to share it with the Chairman of
the Tribunal and secure his agreement to it. In a subsequent
conversation with the Supervisor, the Chairman noted many of
the technical issues already identified by OHR, but also
expressed concern about language in the third paragraph of
the amendment requiring that a Brcko District Assembly vote
to instigate a dispute before the Constitutional Court
include "one-third of elected councilors belonging to each
constituent people." This language had initially been
proposed to address Serb concerns about outvoting on an issue
as sensitive as bringing a dispute between Brcko and an
entity or the state before the Constitutional Court. (Note:
This language was endorsed by Tihic and Covic as well as
Brcko District councilors from all three ethnic groups. It
is worth noting that the Brcko District Statute already

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contains language to prevent outvoting on certain issues. End
Note)

Working to Finalize a Text
--------------


5. (C) Working closely with OHR, we met with Dodik on January
28 and February 2 to review OHR's proposed technical changes
and discuss how to address Serb concerns about outvoting
within the Brcko District Assembly without referring to "at
least one-third...of each constituent people." We stressed
that we were close to finalizing a text and wanted to work
cooperatively with Dodik to secure an agreement, so that the
amendment could be adopted before the March Peace
Implementation Council (PIC) meeting. OHR also shared with
Radojicic its line-in, line-out comments on the text of the
amendment as well as brief legal explanations for their
proposed technical changes. OHR also suggested that, in
return for dropping reference to constituent peoples in the
third paragraph of the amendment, it was prepared to raise
the threshold for the Brcko District Assembly to initiate a
dispute before the Constitutional Court from a simple
majority to a three-fifths majority.

Dodik Insists on Constituent Peoples Language
--------------


6. (C) Dodik complained to us about how the international
community (IC) was "never satisfied and constantly wanted
more from the RS." He noted that he, Tihic and Covic had
agreed on a constitutional amendment for Brcko that was very
similar to the Supervisor's proposed text, but that this
still was not enough for the IC. Regardless, he told us that
he was prepared to accept all of OHR's proposed changes to
the first and second paragraphs of the amendment except for
one, for which he required additional explanation from OHR.
He said that his main area of concern was paragraph three.
Dodik insisted that there must be an explicit requirement
that at least some Brcko District Assembly members from all
three of the constituent peoples participate in a decision to
raise a dispute with the Constitutional Court. He suggested
that this could be as low as "at least one-fifth of the
councilors representing each of the constituent peoples,"
however.

RSNA Special Session on Brcko
--------------


7. (C) Undoubtedly in an effort to put pressure on OHR and
the international community, Dodik and Radojicic scheduled a
special session of the RSNA on Brcko for February 9. As we
understand it, the two men want the RSNA to endorse the text
of a Brcko amendment. We have urged Dodik to wait until the
text is final before presenting it to the RSNA, reminding him
that all sides would be in a difficult negotiating position
if the RSNA expressed support for the current version of the
amendment, which did not meet the conditions for the closure
of supervision. We also noted that it would be difficult to
finalize the text before next Monday given that Radojicic was
in Washington this week. Dodik responded that he is the one
who will make the final decision on this issue, implying that
Radojicic's absence should not slow this process.

Comment: A Deal is in Our Interests
--------------


8. (C) Our intensive diplomacy since the November PIC has
produced progress on Brcko that few within the international
community thought possible. Dodik has now endorsed an
amendment that ensures Brcko is specifically mentioned in the
constitution and defined by the Tribunal's awards, and that
gives the District direct access to the BiH Constitutional
Court. We have a small window of opportunity to finalize a
text this week provided we are prepared to accept Dodik's
requirement that the amendment contain a modicum of
protection against ethnic outvoting. We understand concerns
about doing so, but we believe that we have hit Dodik's
bottom-line, and that to reject it would be to lose the
prospects for an amendment altogether. We note that Dodik
has lowered his demands to one-fifth vice one-third, that
concerns about outvoting are shared by Bosniaks and Croats,
which is one reason why Tihic and Covic support the
provision, and that such protections already exist within the
Brcko District Assembly. In our judgment, "the one-fifth

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provision" is consistent with the principle of multiethnic
decision-making, which has been a hallmark of Brcko for many
years now. In addition, establishing a ceiling of
"one-fifth" in the Brcko case could offer a precedent by
which ethnic protection could be lowered in state-level
decision-making. This could be useful in negotiating
constitutional reforms. With all this in mind, we plan to
work with the Supervisor and OHR to finalize a text in the
coming week with the "one-fifth provision" unless otherwise
instructed.
ENGLISH