Case 2: Lajčak's Reform Proposal (2007–2008)
When Lord Ashdown left Bosnia in 2006 he was replaced by German diplomat, Christian Schwartz-Schilling, as the new High Representative. Arriving ten years after the DPA had been signed, Schwartz-Schilling was announced as the last HR, one who would not rely on the Bonn powers in order to push reforms, but allow domestic elites to take ownership of the political process and agree on necessary reforms. The international community was seeking to wrap-up its civilian mission in Bosnia, replacing Ashdown's interventionist style with a more detached, facilitating influence.
At around the same time, in February 2006 the SDS-led government lost support in the RS parliament and a new cabinet led by SNSD's Milorad Dodik took over
until the October 2006 elections. International representatives regarded Dodik and SNSD as the less nationalist and more co-operative party in RS, an easier partner for reforms. Indeed, Dodik was committed to implementing the DPA and his party supported EU and NATO integration for Bosnia. Yet between February and October 2006, the new RS government did not implement a single measure related to police restructuring. In the October 2006 elections, Dodik scored a resounding victory against the SDS, having demonstrated to the RS electorate that he would be able to defend Serb interests in Bosnia and Herzegovina. Once in government, the SNSD continued the course of resisting any constitutional change that would lead to further transfer of competencies from RS to the state. After all, the DPA and Bosnian constitution had ascribed police as an entity competence.
In the Federation, the 2006 elections saw declining support for the SDA, which though winning a plurality of Bosniak votes, did not have a majority in the fBIH parliament and entered into coalition with the SBIH. The SBIH leader, Haris Silajdžić, won the Presidential race among Bosniaks on a nationalist platform calling for the abolition of RS and centralising the state. Among the Croats, HDZ dominance was challenged for the first time, as a break-off party HDZ-1990 took some of the seats in parliament, splintering the Croat vote and allowing the Social Democratic Party's candidate Željko Komšić to be elected as a Croat member of BIH Presidency. Elected mostly with Bosniak votes, many Croats did not see Komšić as their legitimate representative. Fears that this precedent could turn into regular practice of being outvoted made Croatian elites more apprehensive about their future in a centralised Bosnian state.
Fresh impetus was given to police reform only with the arrival of Miroslav Lajčak as the next HR in July 2007. Although his predecessor was meant to be the last HR in Bosnia, his approach had not resulted in the expected outcomes: political elites had not taken ownership of reforms and had mostly blocked any progression of the political agenda. Therefore, Lajčak reversed the international community's stance by once again pursuing a more active and interventionist approach to domestic politics. Police reform was one of the priority issues on Lajčak's agenda. Using the earlier link between progress in the Stabilisation and Association process and a somewhat-successful agreement over police reform, he aimed to revive the pull of EU conditionality on Bosnian political elites by setting a deadline supported by the EU: 30 September 2007, for politicians to reach an agreement on implementing police reform in order for the SAA to be initialled.21 By August 2007, he had circulated a Draft Protocol on the implementation of police restructuring based on the earlier documents signed by Bosnian politicians during the previous reform attempt.22 Lajčak's proposal included timelines and
21 Joint Press Conference of International Agencies, Sarajevo, 11 September 2007. Transcripts available at: eusrbih.org/media/pc/1/?cid=1940,1,1 (accessed 20 November 2010).
22 United Nations Security Council, Thirty-second Report of the High Representative for Bosnia and Herzegovina, 1 April – 31 October 2007, 5 November 2007 (S/2007/651). deadlines for implementation, all it required was political leaders' approval and official parliamentary adoption.
However, Lajčak's Draft Protocol faced resistance, both in RS and the fBIH. The two major opponents to his proposal were Dodik's SNSD and Haris Silajdžić's SBIH – both members of the state-level governing coalition. Dodik opposed any further transfer of competencies of RS to the state, while Silajdžić advocated abolishing of the entities and creating a centralised Bosnian state. Therefore, both found Lajčak's proposal unacceptable, Dodik as too centralising, Silajdžić as not sufficiently centralising. Both controlled sufficient votes at entityand statelevel institutions to be able to prevent any legislation being adopted without their approval. Although with completely opposing agendas and thus very unlikely allies, in their resistance Dodik and Silajdžić's positions were complementary in undermining the compromise solution offered by the HR.
The debate on police reform was linked to discussions on constitutional reforms. These were becoming increasingly pressing because the Dayton Constitution was seen as limiting the country's capacity to function in an efficient way and proceed with reforms necessary for EU integration. With the arrival of Dodik in power in the RS, the prospects for any reforms that entailed constitutional amendments for transfer of competencies to the state seemed very bleak. Dodik made clear that no further amendments to the RS Constitution would be made with that purpose.23 Moreover, the HR had no authority to intervene and use executive powers to remove Dodik because the executive powers could only be used in cases where the implementation of the DPA was impeded. On the contrary, Dodik's insistence on keeping the police as entity-level competency was completely in accordance with the DPA, which envisaged it as such and allowed for transferring competencies to the state only with the explicit support of entity parliaments. The SNSD saw police reform, as well as similar previous reforms in defence and judiciary, as hollowing out the entities and removing some of the sovereignty vested in them by the DPA. It therefore opposed any such reform.
Although constitutional reforms were necessary for a smoother police reform they proved equally, if not more, difficult to agree than police reform. When in 2006 the internationally sponsored 'April package' for constitutional reforms failed, it revealed the continuing lack of normative elite unity – the incompatibility of the views of different ethnic political elites over the nature and structure of the Bosnian state. The Bosniaks preferred a more centralised state in control of the major policy areas such as defence, police, and judiciary; the Serbs would not agree to further centralisation of authority or any diminishing of RS sovereignty; while the Croats rejected both visions of a centralised and entity-driven state opting for
Available at: securitycouncilreport.org/atf/cf./%7B65BFCF9B-6D27-4E9C- 8CD3-CF6E4FF96FF9%7D/Bosnia%20S2007651.pdf (accessed 5 November 2013).
23 All among the SNSD members interviewed confirmed this as the backbone of SNSD platform and success factor on consecutive elections. See the bibliography section for a list of interviewees. a regionalised structure in which at least one region would be Croat-dominated. Those visions were difficult to reconcile in a single constitutional reforms package and this doomed the chances for successful constitutional reform.24
In the absence of an appropriate constitutional framework, police reform was also blocked. Since the initial agreement on police reform in October 2005, its progress had been tied to the constitutional provisions for police, which limited the scope for both redesigning the boundaries of LPAs and for transferring legislative and budgetary competencies from the entities to the state. Undeterred, Lajčak tried an alternative solution by introducing measures that would relax veto and quorum requirements in the BIH Parliament and make adopting legislation easier. RS politicians immediately rejected this, recognising a backdoor attempt to weaken the power-sharing mechanisms at state-level, which would allow other groups to adopt legislation when Serb members of parliament were absent. As a response, BIH Prime Minister, Serb Nikola Špirić, resigned from his position and all Serb members of state institutions threatened to leave their positions, blocking the work of the state-level government unless the controversial decision was revoked. Relaxing the veto mechanisms, which according to a high-ranking SNSD member 'meant survival for [them]', did not prove a productive way to advance police reform.25 Lajčak had to revoke the measure.
The attempt to weaken veto mechanisms only served to strengthen the resistance among Serb politicians. It confirmed to them their fears that police reform was not about reforming the police to improve public security and cut public spending, but that the real aim was to dismantle the RS by stripping all its competencies. Several RS politicians expressed such opinions during interviews, citing the 'double standards' of the EU, which while demanding centralisation of police in Bosnia, had pushed for police decentralisation in other post-conflict states such as Macedonia, having no consistent model of policing among its member states.26 After consecutive negotiation rounds at HR-organised leaders' meetings had failed to result in an agreement and despite the 30 September deadline approaching fast, Dodik and Silajdžić both refused Lajčak's Draft Protocol. Silajdžić's SBIH had previously also blocked the adoption of the April Package of constitutional reforms in the upper house of BIH Parliament, because they had found it did not pursue far enough the idea of a unitary and civic state.27 He did not hesitate to reject the
24 Thirty-second Report of the High Representative for Bosnia and Herzegovina, 1 April – 31 October 2007.
25 Anonymous, High-ranking SNSD member of the BIH House of Peoples, 2006–2010: personal interview with the author, Banja Luka, 22 September 2010.
26 Member of RS Parliament for SNSD: personal interview with the author, Banja Luka, 21 September 2010; Advisor of the RS President: personal interview with the author Banja Luka, 21 September 2010.
27 European Stability Initiative, 'Bosnia: Constitutional Reform', June 2008. Available at: esiweb.org/index.php?lang=en&id=311&fi (accessed 5 November 2013). proposed police reform as too weak a compromise too. Dodik, who had supported the April package, retreated to his former position after its failure and rejected any transfer of police competencies from entity to state level. Both politicians tried to avoid the blame for undermining Bosnia's progress on EU integration, to which they otherwise declared support, by drafting a separate protocol for police reform two days before the 30 September deadline, which did not address the sensitive topics of LPA boundaries and state co-ordination and control. As the protocol was merely a declaration of support for reforming the police forces, with no executive provisions and commitments, the High Representative rejected the last-minute effort to appease the EU and to proceed with the SAA's ratification.
Only after breaking another deadline by Lajčak on 15 October and rejecting another draft protocol presented by the Croat parties, HDZ and HDZ-1990, finally on 28 October 2007, the leaders of the major political parties of the three groups agreed on a declaration about police reform. The Mostar Declaration, as it became known, confirmed the commitment to the three EU principles for police reform but stated that:
the structure of the single police forces of Bosnia and Herzegovina shall be in line with the constitutional structure of the country [and the] new and reformed police structure of Bosnia and Herzegovina shall be based on relevant provisions of the Constitution of BiH, which shall take form during the process of constitutional reform. 28
In practice, the Mostar Declaration tied any further progress of police reform to the success of constitutional reform without setting any timeframe for it. Again, while falling short of the stated aims of police reform, this document was accepted by the European Commission as a sufficient token of commitment to reform and the SAA was initialled on 4 December 2007.
The Mostar Declaration was followed up with an Action Plan for implementation and in April 2008 two laws envisaged in the Action Plan and the Declaration were adopted by the BIH Parliament. The Law on Directorate for Co-ordination of Police Bodies and Agencies for Support to Police Structure of Bosnia and Herzegovina and the Law on Independent and Supervisory Bodies of Police Structure of Bosnia And Herzegovina did not require constitutional changes and were the only actual legislation adopted as part of the police reform.29
28 'DECLARATION on honouring the commitments for implementation of the police reform with aim to initial and sign the Stabilisation and Association Agreement', Mostar, 29 October 2007. Available at: eusrbih.org/policy-docs/?cid=2109,1,1 (accessed 20 November 2013).
29 Law on Directorate for Co-ordination of Police Bodies and Agencies for Support to Police Structure of Bosnia and Herzegovina and the Law on Independent and Supervisory Bodies of Police Structure of Bosnia And Herzegovina 'Official Gazette of Bosnia and Herzegovina' (No.36/08). Their adoption and the establishment of the additional state-level institutions for co-ordination and supervision of entity-level police forces was accepted by the EC as a sign of progress in implementing the agreed reforms. Noting this progress, the EC ratified the SAA in June 2008, thus ending the protracted process of conditionality-driven police reforms in Bosnia.
No further progress has since been achieved on police reform since then. The Bosnian state still does not have legislative and budgetary control over police forces and LPA boundaries remain unchanged. The thirteen different police forces and ministries of interior have not been abolished, but instead supplemented with additional state-level institutions.30 This only expands the burdensome administrative network around policing and security rather than making it more efficient, as the initial idea for police reform stated. As there has been no progress in constitutional reform since 2008, despite several efforts (Butmir Talks 1 and 2, Prud process), no breakthrough with police reform has been attempted. In RS, the resistance towards police reform and any other transfer of entity competencies to state level continues. This stance brought the SNSD another electoral victory in October 2010, rewarding their resistance during this and other reform attempts. The public remains resistant to police reform. There has been very little bottom-up demand for police reforms in RS and popular trust and satisfaction with the work of the police is higher than in the federation.31
A Second Failure: Lajčak's Proposal
During the second attempt at police reform no actual vetoes were used to block the reform proposals. No proposal was introduced in parliaments before an agreement had been reached and the support of all actors who could block the proposal had been obtained. But vetoes still played a key role in the policy process. Rather than actual vetoes the implicit threat that they might be invoked was used to negotiate a solution acceptable to all sides. The importance of veto mechanisms was further confirmed when Miroslav Lajčak tried to amend the quorum requirements at BIH parliament and make the voting procedure easier. The resistance from Serb politicians showed how valuable they find the leverage that veto mechanisms give them in the political process.
30 Each of the ten cantons in the fBIH has their own police force and ministry of interior, RS and fBIH have entity level ministries and police forces, and at the state level SIPA and Border Police amount to thirteen different police forces and corresponding ministries. This has often been used as an argument for police reform both by international and domestic commentators.
31 Satisfaction in police work and trust in the police remains higher in majority Serb areas, between 65–78 per cent, while in the federation ranges between 35–65 per cent. UNDP. Early Warning Reports Bosnia and Herzegovina, 2000–2006, 2008, 2010. Available at: undp.ba/index.aspx?PID=14 (accessed 20 November 2010). Instead of a reform commission, the negotiations over Lajčak's proposal took place in closed leaders' meetings – an informal setting. There, facilitated by the HR, the leaders of the major political parties of the three ethnic groups negotiated the details of the proposal. Unlike the reform commission, these meetings had no rules of procedure, reporting or voting requirements, but provided a neutral space for debating police-reform proposals.
In addition to convening the informal leaders' meetings and attempting the reform of veto mechanisms in the state parliament, the High Representative also tried to revive EU conditionality in order to encourage greater accommodation. His efforts were only moderately successful, as the two deadlines he set were not respected by the domestic politicians, who seemed to only pay lip-service to their declared support for EU integration. The credibility of external actors was further undermined by the EU's previous inconsistency over the three criteria for police reform, which it had given up during Ashdown's attempts to seal an agreement with Bosnian Serb politicians in 2005.