Bosnia and Herzegovina

Sixtieth report of the High Representative for Implementation of the Peace Agreement on Bosnia and Herzegovina to the Secretary-General of the United Nations (S/2021/912)

Attachments

Letter dated 29 October 2021 from the Secretary-General addressed to the President of the Security Council

Pursuant to Security Council resolution 1031 (1995), I have the honour to transmit herewith the sixtieth report on the implementation of the Peace Agreement on Bosnia and Herzegovina, covering the period from 16 April to 15 October 2021 (see annex). It should be noted that not all members of the Security Council acknowledge the High Representative for Bosnia and Herzegovina.

I would be grateful if you could bring the report to the attention of the members of the Security Council.

(Signed) António Guterres

Annex

Letter dated 22 October 2021 from the High Representative for Bosnia and Herzegovina addressed to the Secretary-General

Pursuant to Security Council resolution 1031 (1995), in which the Council requested the Secretary-General to submit to it reports from the High Representative for Implementation of the Peace Agreement on Bosnia and Herzegovina, in accordance with annex 10 to the General Framework Agreement for Peace in Bosnia and Herzegovina and the conclusions of the London Peace Implementation Conference of 8 and 9 December 1995, I transmit herewith the sixtieth report of the High Representative. I would kindly request that the report be distributed to the members of the Council for their consideration.

This is my first regular report to the Secretary-General since assuming the post of High Representative for Bosnia and Herzegovina on 1 August 2021. The present report covers the period from 16 April to 15 October 2021.

Should you or any member of the Security Council require any information beyond what is provided in the report, or have any questions regarding its contents, I should be pleased to provide you with that information.

(Signed) Christian Schmidt
High Representative for Bosnia and Herzegovina

Sixtieth report of the High Representative for Implementation of the Peace Agreement on Bosnia and Herzegovina to the Secretary-General of the United Nations

Summary

The present report covers the period from 16 April to 15 October 2021.

At the time of writing, Bosnia and Herzegovina is facing the greatest existential threat of the post-war period. Persistent, grave challenges to the fundamentals of the General Framework Agreement for Peace by the Republika Srpska authorities, led by the entity’s biggest party, the Union of Independent Social Democrats (SNSD), headed by Milorad Dodik, a member of the Presidency of Bosnia and Herzegovina, endanger not only the peace and stability of the country and the region, but – if unanswered by the international community – could lead to the undoing of the Agreement itself.

In the climax to an escalating series of crises throughout 2021, Mr. Dodik – the de facto leader of the Republika Srpska, although the entity has an elected president – has called for the entity’s unilateral withdrawal from agreements reached long ago on the transfer of entity competences to the State in the areas of defence, indirect taxes and the High Judicial and Prosecutorial Council, and for the entity to “reclaim” what he asserts were usurped constitutional competences in the fields of the State judiciary, law enforcement and intelligence. He also announced the drafting of a new constitution for the Republika Srpska and the rejection of all “ illegally imposed decisions and laws by High Representatives”.

According to announced plans, this would mean the withdrawal of the members of the Armed Forces of Bosnia and Herzegovina who reside in the Republika Srpska, the takeover of Armed Forces facilities in the territory of the Republika Srpska and the re-establishment of the Republika Srpska Army ostensibly from personnel withdrawing from the Armed Forces of Bosnia and Herzegovina, a move that would turn back the clock 15 years in the field of defence reform alone and even further in terms of confidence- and security-building. This would also mean the withdrawal of the entity from the State-level Indirect Taxation Authority, the High Judicial and Prosecutorial Council, the State Investigation and Protection Agency and the Intelligence-Security Agency, as well as measures to prevent those institutions from operating in the territory of the Republika Srpska.

Mr. Dodik refers to this undertaking as a return to “original Dayton”, which is a political misnomer based on erroneous interpretations of the Constitution of Bosnia and Herzegovina. In practice, the policy is aimed at undoing many of the hard -won reforms of the past 26 years, not in order to strictly adhere to the letter of the General Framework Agreement for Peace but rather to revert to the situation that existed on the ground prior to the implementation of the Dayton Peace Agreement. In short, Mr. Dodik seeks to withdraw the Republika Srpska from the constitutional order established under annex 4 to the Agreement and to opt out of civilian implementation of the Agreement set forth in annex 10.

This is tantamount to secession without proclaiming it. The unilateral withdrawal of either entity from the established State institutions, which is not legally possible under the current constitutional framework, would lead to the collapse of those institutions and ultimately undermine the State’s ability to function and carry out its constitutional responsibilities. Shortly before the completion of the present report, Mr. Dodik revealed his goal as being an independent Republika Srpska “within the Dayton Bosnia and Herzegovina”. As Republika Srpska opposition parties have noted, this is a dangerous path not only for Bosnia and Herzegovina but also for the Republika Srpska, having in mind that entities exist legally only by virtue of the Constitution of Bosnia and Herzegovina and have no right to secede.

State institutions had already been paralysed since July, when Mr. Dodik, in agreement with the Republika Srpska opposition parties, announced the withdrawal of Republika Srpska representatives from the decision-making process in the institutions, ostensibly in response to the decision made by my predecessor as High Representative for Bosnia and Herzegovina, Valentin Inzko, on 22 July to enact amendments to the Criminal Code of Bosnia and Herzegovina to criminalize the denial of genocide and war crimes and the glorification of war criminals, demanding annulment of the decision.

As part of the orchestrated response, the Republika Srpska authorities adopted the Law on Non-Applicability of the Decision of the High Representative Enacting the Law on Amendment to the Criminal Code of Bosnia and Herzegovina, which entered into force in early October. The Law rejects the High Representative’s decision of 22 July, prescribes that State-level legislation shall not be applicable in the Republika Srpska and obliges the Republika Srpska authorities not to cooperate with institutions of Bosnia and Herzegovina attempting to implement State-level law. This constitutes concrete violations of annexes 4 and 10 to the General Framework Agreement for Peace.

Although Mr. Dodik has recently stated that his actions are not aimed at inciting conflict, he has also warned that any attempt by State-level judicial institutions or law enforcement agencies to intercede would be met with force, adding, unprovoked, that if the North Atlantic Treaty Organization were to intervene, the Republika Srpska would seek assistance from unnamed “friends”, who he claims have given assurances of their readiness in this regard.

In my capacity as final interpreter of the General Framework Agreement for Peace, it is my considered assessment that the Republika Srpska authorities are already in grave violation of the Agreement and are poised to violate it further, potentially causing irreparable damage. If they succeed unchallenged in this undertaking, they would establish a new constitutional and legal framework removing the Republika Srpska from the Dayton architecture, particularly from the constitutional order of Bosnia and Herzegovina, which is synonymous with secession. Ignoring or downplaying this state of affairs could have perilous implications for the region and beyond.

This is not to suggest that only the Republika Srpska is problematic. Three full years since the 2018 general election, a new Federation Government has not been appointed, and the Government established under the 2014–2018 mandate remains in place, while the institutions of Bosnia and Herzegovina have been utterly stagnant, with a poorer legislative output from the Council of Ministers and the Parliamentary Assembly of Bosnia and Herzegovina than under any previous mandate. Agreement on much-needed electoral reforms also remains elusive.