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ARBITRAL TRIBUNAL FOR DISPUTE OVER INTER-ENTITY BOUNDARY
IN BRCKO AREA
_____________________________________
The Federation of Bosnia and Herzegovina
v.
Arbitration for the Brcko
Area
The Republika
Srpska
_____________________________________
______________________________
5 March 1999
______________________________
Appearances:
For
the Federation of
Bosnia
Frank McCloskey
and
Herzegovina
Edward O. Delaney
Mark J. Dinsmore
Barnes & Thornburg
Jay D. Zeiler
Akin, Gump, Strauss
Hauer & Field
For the Republika
Srpska
Nikola
Kostich
Styler, Kostich, LeBell
Dobroski & McGuire
Dr Radomir Lukic
TABLE OF CONTENTS
I. THE ISSUE BEFORE THE
TRIBUNAL
II. SUMMARY OF
CONCLUSIONS
III. THE NEED FOR CHANGE IN
GOVERNANCE
A. The Practical and Political Forces Impeding
Two-Way
Returns
B. The Discouragement of Serb Departures from
Brcko
C. Discouragement of Bosniac and Croat Returns to
Brcko
D. The Failure to Facilitate Local Multi-Ethnic
Government
IV. THE BASIC STRUCTURE OF THE NEW
DISTRICT
V. RECOMMENDATIONS
TO THE HIGH
REPRESENTATIVE AND THE INTERNATIONAL
COMMUNITY
VI. PROTECTION OF THE VARIOUS INTERESTS
INVOLVED
A. Interests of the
Republika
Srpska
B. Interests of the
Federation
C. Interests of the
International
Community
VII. LEGAL VALIDITY OF THE DISTRICT
PLAN
FUTURE ADJUSTMENTS IN THE ANNEX
PROVISIONS
IX. PENALTIES FOR
NON-COMPLIANCE
X.
AUTHENTICITY
ANNEX
FINAL AWARD
1. As explained
in the Tribunal's prior rulings, at the 1995 Dayton Conference those
representing the two sub-state entities of Bosnia and Herzegovina ("BiH") -- the
Federation of BiH and Republika Srpska ("RS") -- were unable to reach agreement
as to which entity should control the Brcko area in northeastern Bosnia. Failing
agreement, the Dayton map in effect placed the area in temporary RS custody, but
it was agreed by all parties that it would be left to this international
arbitration tribunal to decide where to place responsibility for the future
governance of the Brcko area.
2. The
Tribunal's Award of 15 February 1997 explained in considerable detail the wide
latitude necessarily enjoyed by this Tribunal in fashioning a remedy for this
extremely troublesome dispute. See Award 38. The parties themselves struggled
with the issue through the 21-day Dayton Conference, and the negotiations on the
Brcko issue finally broke down as the Conference was about to end. In a sense,
therefore, this final phase of the arbitration is the final phase of the Dayton
process itself. In order to complete that process, the parties (including BiH
and both entities) explicitly agreed that the arbitral decision reached by the
Presiding Arbitrator "shall be final and binding" and that the parties "shall
implement it without delay." See Dayton Annex 2; Award 5.
3.
It is generally agreed that there are
three basic alternatives. One is to transfer Brcko to the Federation, which
claims the right of governance on the essential grounds (a) that historically
the Brcko municipality has been predominantly Bosniac and Croat, as well as
vital northern gateway between central Bosnia and Europe, (b) that it would be
unconscionable for the RS to retain exclusive possession of a city which the
Serbs captured and "ethnically cleansed" during the war, and (c) that the only
just result would be to award the Brcko area to the Federation.
A second alternative is to confirm the RS's claim to the
right of permanent governance on the essential ground that, whatever its
history, the Brcko corridor along the Sava River provides a vital strategic
connection between the two halves of the RS. It claims that any change in its
exclusive possession would be inconsistent with the alleged principle of
territorial continuity and the Dayton objective of allowing the RS to control
49% of BiH territory.
Third,
the Tribunal's prior rulings have suggested the possibility that the result most
consistent with Dayton's objectives might be to remove Brcko from the exclusive
control of either entity and place its governance in the hands of an independent
District government under the exclusive sovereignty of BiH. See Award 103-04;
Supp. Award 27.
4.
In order to move
this dispute forward toward a just and equitable solution consistent with the
objectives of Dayton, the Tribunal's two prior decisions (a) have created an
international supervisory regime in the Brcko area with instructions to move the
parties toward compliance with Dayton, and (b) have narrowed the issues and
focused on one over-riding question. Specifically, as a result of the 1997
and 1998 arbitral hearings the Tribunal found that during its post-Dayton
custody of Brcko the RS had engaged in "systematic non-compliance with (indeed,
defiance of) the Dayton Accords in the Brcko area." Supp. Award at 21. The 1998
ruling explicitly forewarned the RS that at a final round of arbitral hearings,
to be
held at
year end, the RS would have to carry "the burden of demonstrating very clearly,
that it has truly reversed and committed itself to apparently permanent
program of full Dayton compliance," including specifically a demonstration of
"significant new achievements in terms of returns of former Brcko residents" and
"strong support for the multi-ethnic governmental institutions" then being
developed under international supervision. The Tribunal expressly stated that at
the 1999 arbitral hearings it would "expect to receive from the RS evidence
displaying a very vigorous and consistent program of correction and compliance
throughout 1998" and that, absent such a showing, the Tribunal would be
compelled to "diminish the RS's position in the Brcko area." Thus the basic
issue before the Tribunal now is whether the RS made the necessary showing
during hearings held in Vienna in the period 8-17 February 1999.
5.
The time is ripe
for a final decision as to the future governance of Brcko. Both entities have
urged the Tribunal to make a final ruling now. Moreover, the point was made at
the recent hearing that, despite Dayton’s goal of having displaced persons
("DPs") return to their original homes, Serb DPs in Brcko are becoming ever more
"cemented" in position with the passage of time, that Bosniacs and Croats from
Brcko are beginning to abandon hope of returning to Brcko, moving off to
other areas instead, and that any further delay in the arbitral process will
continue to reduce the chances of ethnic reintegration in the Brcko area. The
Supervisor has also emphasized that until a final decision is made, it will be
virtually impossible to persuade either donor governments or private investors
to fund the badly needed economic revitalization of the depressed Brcko
area. Finally, it is likely that any further postponement of a final decision in
this matter - the only unresolved issue left over from Dayton - will impede the
development of BiH as a whole.
6.
During the 1999
Vienna hearings the RS failed to make the kind of showing required by the
Supplemental Award of 15 March 1998. Instead of suggesting "a very vigorous and
consistent program of correction and compliance [with Dayton and the prior
arbitral rulings] throughout 1998," the evidence showed instead (as more fully
described below) that throughout 1998, notwithstanding the good intentions of RS
Prime Minister Milorad Dodik, the Serb political leaders exercising immediate
local control in Brcko - especially individuals aligned with the anti-Dayton SDS
and SRS parties both locally and entity-wide - tolerated and apparently
encouraged a significant level of obstruction against the attainment of Dayton's
and the Tribunal's objectives, particularly as against the goals of (a)
encouraging and enabling displaced persons and refugees to return to their
pre-war homes, (b) helping to develop democratic multi-ethnic institutions, and
(c) cooperating with the international supervisory regime.
7.
The Tribunal has
further concluded that it is very unlikely that the level of local
obstructionism will effectively diminish so long as anti-Dayton political
elements-particularly the SDS and SRS parties led by newly-elected RS President
Nikola Poplasen - are allowed to remain dominant in that portion of the Brcko
area that is in RS custody. Indeed, if pro-Dayton elements had been able to
implement their programs in the Brcko area during the last year, the Tribunal's
present decision to require a change of government might not have been necessary
but SDS/SRS intransigence has left the Tribunal with no choice.
8.
With all parties
in vigorous agreement that the international supervisory regime must continue in
force indefinitely in the Brcko area, it is appropriate to allow the necessary
change to be brought about on an orderly schedule, thus avoiding the kind of
abrupt change that may unnecessarily aggravate the situation. The Supervisor
will have responsibility for scheduling and implementing the changes described
below over the next several months, and severe penalties will be imposed for any
failure to cooperate with his implementation progam, including the ultimate
remedy of placing Brcko in the exclusive control of one entity or the other. See
65-68, infra. In the meantime, pending
implementation of the District plan by the Supervisor, the Inter-Entity Boundary
Line ("IEBL") will continue in place without change, and existing laws and
governmental arraignments (including those related to payment of salaries to
employees) will remain in force. See 39, infra.
9.
Pursuant to the
commitments made by BiH and both entities to "implement without delay" the
Tribunal's decision, upon the effective date to be established by' the
Supervisor each entity shall be deemed to have delegated all of its powers of
governance within the pre-war Brcko Opstina to a new institution, a new
multi-ethnic democratic government to be known as "The Brcko District of Bosnia
and Herzegovina" under the exclusive sovereignty of Bosnia and Herzegovina. The
legal effect will be permanently to suspend all of the legal authority of both
entities within the Opstina and to recreate it as a single administrative
unit.
10. As an institution existing under
the sovereignty of Bosnia and Herzegovina, the new District government will be
subject to the powers of the common institutions of BiH as those powers are
enumerated in the BiH Constitution. All other powers of governance within the
Brcko Opstina. having been delegated by the two entities, will be exercised
exclusively by the District government, subject, however, to supervised
coordination with the two entity governments. See 43, infra. Responsibility for overall coordination. and for
issuing any needed directives to ensure that the entities fulfill their
obligations with respect to the new District, will be that of the Supervisor,
who may delegate that responsibility to an appropriate BiH institution. The
entities are hereby ordered to implement without delay any such directive,
regulation or order issued by the Supervisor or his delegate. The Tribunal is
satisfied that these arrangements are fully consistent with the BiH
Constitution. See 58-62, infra.
11. Upon the establishment of the new
District, the entire territory, within its boundaries (i.e., the pre-war Brcko
Opstina) will thereafter be held in “condominium” by both entities
simultaneously: The territory of the RS will encompass the entire Opstina, and
so also will the territory of the Federation. Neither entity, however, will
exercise any authority within the boundaries of the District, which will
administer the area as one unitary government. Existing entity law will continue
to apply as appropriate within the District until modified by action of the
Supervisor or the District Assembly, and the IEBL will continue to exist within
the District until the Supervisor has determined that it has no further legal
significance and may cease to exist. See 39, infra.
No subdivision of the District on any ethnic basis shall be
permitted.
12. Having considered all of the
evidence, the Tribunal has concluded that the new District plan will adequately
protect the legitimate interests of both of the two entities and those of the
international community. See 50-57, infra.
13. The Dayton Accords require that the
entities "implement without delay" this “final and binding” Tribunal award. In
the event of non-compliance, the Supervisor will have authority to issue
remedial orders. In addition. this Tribunal will remain in existence until such
time as the Supervisor, with the approval of the High Representative, has
notified the Tribunal (a) that the two entities have fully complied with their
obligations to facilitate the establishment of the new institutions herein
described, and (b) that such institutions are functioning, effectively and
apparently permanently, within the Brcko Opstina. Until such notification, the
Tribunal will retain authority, in the event of serious non-compliance by either
entity, to modify this Final Award as necessary - e.g., by placing part or all of the District within the
exclusive control of the other entity.
14. Thanks to the efforts of the
Supervisor, who arrived in Brcko in April 1997, progress has been made toward
implementation of the Dayton Accords. As the leading example, there is general
agreement that through the combined efforts of the High Representative and the
Supervisor there has been a great improvement in freedom of movement, in the
degree to which citizens of BiH can cross in and out of the RS part of the Brcko
area. This has been an important accomplishment, in part because it contributes
to the movement of commercial traffic and the enhancement of the economies of
both entities.
15. Some progress has also been made in
terms of the establishment of multi-ethnic institutions in Brcko. Most notably,
the constant and diligent supervision of the International Police Task Force
(the "IPTF") has resulted in the establishment of the only multi-ethnic police
force in the RS today. Hopefully other communities in the RS and the Federation
will be able to follow suit.
16. On the other hand, with respect to
the most important of all of Dayton's objectives - the return of refugees and
displaced persons to their homes or origin - the progress in the Brcko area has
fallen far short of the basic standard spelled out in Paragraph 21 of the
Supplemental Award of 15 March 1998. It is true, thanks almost entirely to the
efforts of the international community, that in a narrow sense there has been
some success in terms of returns: In the RS-held area south and west of Brcko
Grad, Bosniacs and Croats returned in sufficient numbers during 1997 and 1998 to
enable RS authorities to claim chat returns to the Brcko area have been greater
than in any other RS municipality. But that in a sense is damning with faint
praise: That achievement, such as it is, does not demonstrate "a very vigorous
and consistent program of correction and [Dayton] compliance."
17. Additionally, as further explained
below, local political leaders have seriously obstructed the development of a
democratic administration in Brcko.
18. Analysis of Brcko returns must
start from the need for two-way returns. After the ethnic cleansing of Brcko
during the war, Brcko Grad became essentially l00% Serb, and Serb DPs flocked in
to Brcko from other parts of Bosnia and Croatia. The result, today, is that some
26,000 Serb DPs are housed in Brcko, most of them living in apartments and
houses that lawfully belong to Bosniacs and Croats who were driven out in the
cleansing process. The Supervisor has wisely decided against any wholesale
evictions of such people, but as a practical matter a Bosniac family cannot
return to its former home in Brcko unless the Serb DP family now living there
moves out. In short; until a substantial number of Serb DPs move, thus making
housing available to returning Bosniacs and Croats on a two-way basis, Brcko
will not return to its multi-ethnic pre-war character.
19. The political
realities are that progress toward a two-way return program has been seriously
impeded by various anti-Dayton Serb groups, including particularly the Serbian
Democratic Party ("SDS") formerly led by Dr. Radovan Karadzic and Momcilo
Krajisnik and headquarters in Pale during the war. As previously emphasized by
the Tribunal in the Supplemental Award (at 7), a prime goal of SDS - and its
hard-line allies in the Serbian Radical Party ("SRS") - has been to maintain the
Serbs-only "ethnic purity" of the Brcko region in clear defiance of Dayton's
principal objective. It was the Tribunal's conclusion a year ago that through
1997 SDS officials in Brcko had seriously obstructed the returns process. Id.
20. In light of Paragraph 21 of the
Supplemental Award, the question arises: During 1998 did conditions change
sufficiently to justify continued RS governance of Brcko? As noted a year ago,
in early 1998 there was hope that SDS's hard-line control of Brcko might be
dissipated by the arrival of pro-Dayton forces led by (among others) Milorad
Dodik, then newly installed as Prime Minister in defiance of the SDS.
Unfortunately, although Mr. Dodik made efforts in the right direction during
1998, there is considerable evidence that local SDS forces retained their hold
in Brcko throughout the year and prevented pro-Dayton groups, including the
so-called Sloga coalition, from effecting real change.
21. It seems reasonably
clear that the incumbent anti-Dayton forces in Brcko were encouraged when; five
months ago, Nikola Poplasen, a particularly hard-line SRS leader, was elected
President of Republika Srpska. Mr. Poplasen has made plain over time that he is
a close ally- of the most anti-Dayton champions of Serb nationalism, including
Vojislav Seselj (leader of the SRS in the FRY), and that, instead of supporting
an independent Bosnia, he favors secession by the RS and a merger with Serbia;
he has said that he regards such a merger as "inevitable." In the last five
months Mr. Poplasen has worked diligently to preclude Mr. Dodik from continuing
in office, thus undercutting compliance with Dayton in the Brcko area. Moreover,
only days before the date of this Final Award Mr. Poplasen was quoted in the
press as threatening to respond militarily to an adverse ruling in this
proceeding, and he has recently refused to comply with the High Representative’s
decision regarding civilian command authority over RS military forces. These
actions have strengthened the Tribunal’s conclusion that a change from RS
control is essential. Indeed, Mr. Poplasen must take major responsibility for
the result being reached in this decision.
22. Dayton's multi-ethnic objective can be
achieved only if responsible officials act in good faith to encourage two-way
returns-encouraging those illegally occupying others' houses to exercise their
right to return home, vacating the premises for the rightful owners. It is true
that Annex 7 of the Dayton Accords provides that the parties are not to
"interfere with the returnees' choice of destination," but efforts to encourage
DPs to stay where they are and retain property illegally, as distinguished from
facilitating returns, are inconsistent with Dayton.
23. The record is clear that during
1998 hard-line SDS officials in Brcko encouraged Brcko's Serb DPs and refugees
to stay where they are, whether or not recovery of their own homes elsewhere was
a real possibility. Their message has been that it would be dangerous to leave
and dilute the existing Serb grip on Brcko Grad. Moreover, this message has been
sustained right through the year 1998, despite the Tribunal's clear call, in
March 1998, for a new approach.
24. To give a few examples, in July
1998, four months after the Supplemental Award, the SDS-allied Serb Mayor of
Brcko made public statement (quoted in RS-controlled media) to the effect that
it would be unwise for Serbs to leave Brcko Grad and return to the Federation.
In September, two months later, an SDS-allied member of the Brcko Executive
Board urged a large meeting of Serb DPs in Brcko to abandon any thought of
leaving the area. And at "seminars" for DPs conducted throughout the year local
officials spoke primarily in terms of staying in Brcko, in homes belonging to
others, rather than encouraging returns. It may also be significant that,
although RS authorities-testified that every RS municipality had been directed
to prepare a plan for the facilitation of returns, Brcko was one of the few that
did not comply with this direction.
25. The failures and
obstructions noted above apparently had the desired results. According to UNHCR,
more than 7,600 Serbs returned officially to the Federation from various parts
of the RS in 1998. Of that group, at least 4,000 Serbs returned to the Sarajevo
canton, where approximately 125,000 Serbs lived before the war. But the movement
from Brcko to the federation was negligible. Out of approximately 26,000 Serb
DPs in Brcko, only 142 Brcko Serb families applied to return to the Federation;
and many less actually moved. According to one local Serb official, in the two
years,1997-98, only nine Serbs left Brcko to return to the Federation. There is
evidence that although there are some 3,500 Serb DP families who came to Brcko
from Sarajevo, only 23 have applied for return, and only four have actually
moved. In short, it is almost surely the case that the flow of returnees out of
Brcko has been very much smaller than it would have been if local officials had
sought to comply with Dayton ³.
26. The Supplemental Award
of 15 March 1998 emphasizes (at 7) that during 1997 "there was systematic
intimidation of any Bosniacs or Croats who explored the possibility of returning
to their former homes in the [Brcko] area," the apparent objective being, once
again, to maintain the Serbs-only "ethnic purity" of the region. As a result,
although some Bosniacs and Croats managed to return to the region during 1997,
all such returns were confined to the relatively rural areas south and west of
Brcko Grad. No returns were accomplished into the Grad itself.
27. Although the
Supplementary Award (at 21) called upon local Brcko authorities to launch "a
very vigorous and consistent program of correction" during 1998, something less
actually occurred. The intimidation of prospective returnees was not quite as
flagrant as it was in 1997, but intimidation continued to occur in various forms
throughout 1998. As noted below, although an estimated 9,000 Bosniac and Croat
applications for return to Brcko have been filed with appropriate authorities,
only a tiny fraction of those prospective returnees have actually moved
back.
28. Predictably, there is
little hard evidence of official encouragement of intimidation. but the record
clearly shows a serious lack of political will to prevent such intimidation from
occurring. For example, on 12 separate occasions in 1998 (in Klanac. lvici,
Gluhakovac and Meraje) Serb demonstrators gathered to protest returns, harass
Bosniac and Croat returnees, and obstruct house-marking by international
officials. The evidence suggests that some of these demonstrations were
"orchestrated" by hard line groups. Part of this practice involved "thugs"
gathering crowds of protesting Serbs together and urging Serb women and children
to move to the front, thus discouraging any possible police effort to move
against the crowd. Although in each case police arrived at the scene and
prevented actual physical harm to the targets, the latter were effectively
intimidated, and no one h4s returned to the homes involved. Significantly, no
arrests were made.
29. The record also
reflects various ethnically-motivated crimes against Bosniacs and Croats, again
without any subsequent prosecution. As one example, one of the very few Bosniacs
who actually attempted to return to Brcko Grad in 1998 (a former shop-owner who
had the courage to bring his wife and daughter with him) suffered a double
bombing: a hand grenade was thrown into his shop; another was used to bomb his
automobile: no arrests were ever made; and the victim has prudently abandoned
his effort to return.
30. As to whether local
officials should bear responsibility for the virtual absence of returns to Brcko
Grad, one fact stands out from the rest: With great effort Supervisor Farrand
has managed to put together a multi-ethnic government in Brcko, with the result
that a number of Bosniacs and Croats who have become government officials now
have an additional motivation to return to their homes in Brcko Grad (to avoid a
long commute), but local Serb officials have simply refused to obey Ambassador
Farrand's directions to facilitate returns by these non-Serb officials to their
home city.
31. The result is that the
volume of returns to the Brcko area actually declined during the last six months
of 1998. That fact, standing alone, demonstrates the plain failure of local
Brcko officials to meet the standards set out in Paragraph 21 of the
Supplemental Award.
32. The Supplemental Award
(Paragraph 21) called upon local Brcko officials to provide "strong support for
the multi-ethnic governmental institutions" being developed under international
supervision, but local authorities have plainly failed to obey that direction.
In the first place, the very establishment of a multi-ethnic administration was
delayed beyond Supervisor Farrand's original December 31,1997 deadline; indeed,
it was not finally accomplished until August 1998, after two more deadlines had
passed. More troubling, despite a degree of formal or outward compliance with
stated requirements for developing such institutions, the actions and attitudes
of local leaders have frustrated true multi-ethnic power- sharing - at least
until pressed by the international community.
33. The lack of support
for the multi-ethnic governmental institutions ranged from minor obstructionism
to serious disobedience of orders issued by Supervisor Farrand. With a whole
list of such episodes in evidence, we need only note a few examples. Relations
between the Mayor (Serb) and the two Deputy Mayors (Bosniac and Croat) were
marred by the Mayor's failure to abide by the requirement that the Deputy Mayors
countersign letters to the Municipal Assembly and by the Mayor's refusal to
allow the Deputy Mayors to place items on the agenda of the Executive Hoard.
Serb block voting both on the Executive Board and in the Assembly effectively
prevented those bodies from acting on issues that they were required to address
by Supervisory orders and this Tribunal's Awards. Local leaders have also
prevented ethnic integration in the lower ranks of the Brcko administration.
This and other evidence demonstrates a clear pattern of resistance against, not
support for, the development of democratic multi-ethnic institutions m Brcko.
That fact, standing alone, calls for a change in the governance of
Brcko.
34. Having set forth (in
Paragraph 9, supra) the Tribunal's critical conclusion that upon an effective
date to be designated by the Supervisor - hopefully by 31 December 1999 - a new
governmental institution must be created through specified actions by BiH and
each of the two entities, we explain below the basic plan for the new "Brcko
District of Bosnia and Herzegovina" or (informally) "the District government."
As noted in Paragraphs 9 and 10, since the District government will be an
institution existing under BiH sovereignty, it will be subject to BiH control in
those areas which are the responsibility of the BiH common institutions, and in
other respects (subject to needed coordination by the Supervisor between the
District and the two entity governments) the District government will operate on
a self governing basis.
35. Although the Tribunal
is hereby announcing its final decision as to the basic plan for the new
District, it may be premature at this point (as explained in Section VIII below)
to make final rulings on certain aspects of the new system of government. Those
matters are discussed in the Annex to this Award, and interested parties will
have a 60-day opportunity to comment on the matters raised by the Annex. All
other rulings set forth in this Final Award, however, are final and binding and
shall not be the subject of further comment.
36. The basic concept is
to create a single, unitary multi-ethnic democratic government to exorcise,
throughout the pre-war Brcko Opstina, those powers previously exercised by the
two entities and the three municipal governments. The District government shall
consist essentially of (a) the District Assembly, a legislative body whose
membership will be selected through democratic elections to be scheduled by the
Supervisor; (b) an Executive Board, to be selected why the Assembly; (c) an
independent judiciary, to consist of two courts, trial and appellate and (d) a
unified police force operating under a single command structure with one uniform
and badge, with complete independence from the police establishments of the two
entities.
37. All interested parties
having agreed (as previously noted) that the Supervisory regime established by
the Award must continue in existence, the authority and the responsibilities of
the Supervisor must now be expanded geographically and augmented as hereinafter
provided in this Final Award and The Annex. Supervision shall continue until
terminated by the Steering Board of the Peace Implementation Council.
38. The initial new,
responsibility of the Supervisor will be to appoint a joint implementation
commission to assist him in preparing a new "Statute for District Government"
and a detailed plan and schedule for the formation of the District Government.
The Supervisor, in his discretion, may decide to select and include within the
commission's membership representatives of BiH, the two entities, and the
existing Brcko government, and he is encouraged to seek such expert advice as he
deems appropriate.
39. The laws presently
applicable in the RS portion and the Federation portion of the Brcko Opstina
will continue to apply in those areas until such time as the laws have been
reviewed and harmonized and approved by the Supervisor or, with his approval, by
the new District Assembly. When the Supervisor concludes that the IEBL has
ceased to have any legal significance within the District, it will cease to
exist within the District. Subject to further order of the Supervisor, existing
governmental arrangements shall continue in force pending formation of the
District government. In addition, the current obligations of the entities with
respect to such entitlements as salaries and pensions shall remain effective
until otherwise directed by the Supervisor. BiH, the entities, and existing
municipal governments will take no actions that will impair the establishment of
the District.
40. The Supervisor's
implementation plan must provide for severing all connections between the
entities and the new District police force, which will need to be expanded and
readied to exercise its law enforcement responsibilities throughout the Brcko
Opstina. Except as explicitly authorized by the IPTF or the Supervisor in
written regulations, no entity police or security officials may enter the
District in any of official capacity, and no District police personnel will take
instruction or direction from any representative of either entity or any
political party.
41. From and after a date
to be established by the Supervisor, neither entity shall allow any of its
military or other armed forces or supporting facilities to be based in the
District. Recognizing that it may be desirable to allow a gradual phasing out of
any existing military presence within the Brcko Opstina, the Supervisor is
authorized and directed to work with SFOR on the scheduling of the gradual
withdrawal of military forces and military facilities. The international
community is encouraged to provide financial assistance to the entities in
effectuating such relocations.
42. The Tribunal
recognizes that from time to time the RS may have a legitimate need to move
military forces and equipment through the District, and the existing SFOR
regulatory regime, under which such transit may occur with SFOR permission, will
continue in place. Thereafter any such transit will take place only in
accordance with the laws of BiH and the District.
43. The Tribunal
recognizes that there will be a need for coordination among the governments of
BiH, the two entities, and the District on a variety or issues including
questions of sharing expenses and revenues. The Supervisor will have the
responsibility to effect such coordination and, failing agreement, to direct the
entities to take appropriate action with respect to Brcko. The Supervisor may,
if he wishes, delegate this responsibility to an existing BiH institution or to
a new institution established for that purpose. The entities are hereby ordered
to comply with and implement without delay any such coordination directive.
regulation, or order issued by the Supervisor or his delegate.
44. It is the Tribunal's
expectation that, with a greater degree of democracy in the area and a lessening
of anti-return propaganda and intimidation, which must be accompanied by
increased returns-facilitation by the Federation, the existing prejudices of
Brcko's Serb DPs against return to their original homes will be alleviated and
that the flow of DPs out of Brcko will increase, thus facilitating returns both
ways. In addition, there is reason to believe that, as DPs from both entities
increasingly return home, there will be a dilution of hard-line nationalistic
attitudes in both entities, thus reducing tensions overall in Bosnia and
Hercegovina .
45. As to the wisdom of
the new District approach, the Tribunal is encouraged by the fact that a number
of thoughtful people from all ethnic backgrounds in Bosnia and Herzegovina have
enthusiastically supported this approach. The belief that Brcko will best be
served by the new District plan is shared by respected jurists, academics, and
members of moderate political parties representing all three major ethnic
groups.
46. While leaving
scheduling matters to the Supervisor, it is the Tribunal's hope and expectation
that the various components of the new District government will be operational,
for the most part, by 31 December 1999 or within a few months
thereafter.
47. The Tribunal notes
that in terms of DP and refugee returns Dayton's objectives can be achieved in
the Brcko area only if a genuine effort is made to remove all obstacles to, and
to provide serious encouragement for, returns to the Federation by Serb DPs
presently residing in Brcko. The Sarajevo Declaration of December 1997 called
for major achievements in this direction, as did Paragraph 22 of the Tribunal's
Supplemental Award, but UNHCR has reported that the Federation has fallen far
short of the stated goals. Accordingly, whether or not the Tribunal is in a
position to direct such actions on the part of the High Representative, it takes
the liberty of strongly recommending to him that he take further steps, as
appropriate, to cause the Federation (a) to provide Brcko's Serb DPs with
expedited, priority assistance in repossessing their properties within the
Federation, (b) to provide such persons with employment and security following
their returns; (c) to ensure returning Serbs a fair measure of local political
control and economic participation in relevant Federation areas, including
particularly Sarajevo Canton and Ilias, Ilidza, Vogosca, and Visoko
Municipalities; and (d) to reduce the presence of Armija and HVO forces in areas
where they may be perceived as a threat to Serb returns, including Gradacac,
Srebrenik, Lukavac, Orasje, Jajce, and Drvar Municipalities. Because the largest
single group of Brcko Serb DPs is from the neighboring Posavina region, the
Tribunal strongly recommends that the High Representative and the Supervisor
work together to eliminate obstructive behavior by local officials against such
returns. It is further recommended that if the Federation tails to facilitate
Serb returns to Sarajevo, the High Representative consider undertaking
additional measures of international direction in the formerly Serb suburbs of
Sarajevo.
48. In the event that the
High Representative imposes additional requirements upon the Federation in aid
of encouraging Serb return from Brcko, the Supervisor is authorized to take
Federation compliance with such requirements into account (along with all other
factors that he may consider relevant) in scheduling the establishment of the
District Government.
49. It being clear that
one of the major causes of tension in the Brcko area is its general economic
depression and high rate of unemployment, all relevant international
institutions are strongly encouraged to support and assist the Supervisor in his
efforts to revitalize the District's economy in the interests of reducing
tensions in the area and promoting the cause of international peace. Financial
support from international donors such as the European Union, the World Bank,
the United States, and the European Bank for Reconstruction and Development will
be particularly important to implement this plan, and they are respectfully
urged to provide the Supervisor with all necessary support in his economic
revitalization efforts.
50. In reaching its
decision the Tribunal has considered the interests of the two entities as they
have been explained by counsel during the several hearings. It is the Tribunal's
conclusion that the new District plan will adequately protect such
interests.
51. In the course of
prior hearings the RS has identified three interests that allegedly deserve
protection. First, it is alleged that the Dayton Accords recognize a legal or
equitable principle-the so-called principle of "territorial continuity" - which,
if applied by this Tribunal, could require that the RS-held Posavina corridor as
shown on the Dayton map be allowed to continue in RS custody. As noted in the
Award, however, Dayton's conferment of arbitral authority to sever the corridor
if so required by applicable principles of law or equity demonstrates that the
parties at Dayton did not intend that any principle of "territorial continuity"
be treated as controlling over other considerations. See Award 82. Moreover,
although under the present decision the Brcko area will be administered on a
self-governing basis by the District government, RS territory as shown on the
Dayton map will remain continuous. See 11, supra.
52. The RS continues to
argue, as it has in the past, that one of Dayton's goals was to insure that in
the post-Dayton world RS territory would include at least 49% of all of BiH.
Nothing in this decision, however, will diminish that territorial share. Indeed,
since the amount of territory added to the RS under the "condominium"
arrangement will be greater than that added to the Federation, the RS’
percentage share is being increased by this Award.
53. The RS once again
argues that it needs to retain authority over the corridor for the "strategic"
purpose of allowing movement of its armed forces from one part of the RS to the
other, but there are at least three answers to that contention. First, whenever
the RS has a legitimate need to move military forces through the District, it
need only make application to SFOR for an appropriate transit permit. Second, so
long as Bosnia and Herzegovina remains a unified and peaceful state as provided
at Dayton, the RS has no military or "strategic" need for an RS-controlled
corridor. Third, and most importantly, apart from military transit, the RS and
its citizen will continue to have an absolutely unrestricted right to move
freely east and west through the District - a right that will be vigorously
enforced by the new multi-ethnic and democratically oriented District police
force. Thus the desired corridor will remain open for all legitimate purposes,
and all legitimate "territorial continuity" will be preserved.
54. Various interests of
the Federation have been adequately discussed in the Award and the Supplemental
Award. The dominant interests that remain open for discussion are (1) the
Federation's political and social interest in insuring that the portion of the
Brcko Opstina that lies north and east of the IEBL i.e., the RS portion of
Brcko) will once more be restored as a multi-ethnic community under a
multi-ethnic democratic government, thus allowing Bosniac and Croat DPs who were
forced out of Brcko during the war to return to their former homes, and (2) the
Federation's economic interest in insuring that the Brcko Opstina will be
completely open to Federation traffic, north and south, thus insuring the
preservation of a northern gateway to Croatia and Europe.
55. We believe that it is
clear, from prior discussion, that both interests will be protected under the
District plan.
56. As to the
Federation's arguments in favor of a transfer of the RS portion of the Brcko
Opstina to the Federation, such arguments are not without force. Indeed, had
Prime Minister Dodik not newly appeared on the scene in early 1998, the Tribunal
might well have made the requested transfer. See Supp. Award at 8-12.
Nonetheless. it is incumbent upon the Tribunal to consider how well, during the
rest of 1998, the Federation shouldered its responsibility for ensuring that
those Serb DPs who wished to return to their former homes in the Federation were
encouraged to do so. Since in this respect the Federation's performance in 1998
was less than satisfactory (as conceded by various Federation representatives),
the Tribunal deadlines to place Federation officials in exclusive control of
ethnic reintegration in Brcko, with or without supervision. The more equitable
and wiser course, we believe, is to place such responsibilities in the hands of
a new multi-ethnic democratic District government under international
supervision.
57. At this point, with
significant progress having been made in terms of freedom of movement between
the two entities, the international community's most urgent objective is to
maximize the freedom of refugees and displaced persons to return to their
original homes in BiH. As several witnesses made clear in earlier hearings,
"there is little hope for peace" until "the unrest and discontent" arising from
displacement have been alleviated through an effective returns program. See
Award 85. The Tribunal has concluded that in this respect the cause of peace
will be most effectively advanced by keeping Brcko returns out of the exclusive
control of either of the two entities.
58. The Tribunal is
satisfied that all aspects of the plan are defensible as being consistent with
and not disruptive of the Constitution of BiH as adopted at Dayton.
59. The District plan is
consistent with the constitutional requirement that Bosnia and Herzegovina
consist of two, and no more than two, Entities. See Const. Art. I(3). Since all
territory within BiH will continue to be assigned to one entity or the other or
both, it will continue to be the case that BiH consists only of the two
entities.
60. As to the
institutional adjustments herein described, Article III(5)(a) explicitly
authorizes BiH to "assume responsibility for" such matters as "are necessary to
preserve the sovereignty territorial integrity, political independence and
international personality of Bosnia and Herzegovina." This provision is also
explicit that "[a]dditional institutions may be established as necessary to
carry out such responsibilities." As has been clear since Dayton, the instant
dispute that the potential to ignite efforts to destroy Bosnia through secession
or renewed hostilities. In these circumstances, the invocation of Article
III(5)(a) is both appropriate and necessary, and the creation of the new
District as herein described is constitutionally authorized.
61. The same is true of
the requirement that, as of the effective date designated by the Supervisor,
both entities shall be deemed to have delegated all of their powers of
governance in the prescribed area to the District government. Like BiH, both
entities are bound by Dayton Annex 2 to "implement" the Tribunal's direction
that such a delegation be made . All powers thereafter exercised by the
District will, of course, continue for constitutional purposes to be
"governmental functions and powers. . . of the entities." See BiH Constitution
Article III(3)(a).
62. Given the clear
meaning of Dayton Annex 2 as to the "binding" effect of this decision upon BiH
and both entities, their respective judicial and parliamentary institutions are
equally bound to honor and implement the Tribunal's rulings.
63. The Tribunal recognizes that at the
hearings of 8-15 February 1999 the two parties did not have an opportunity to
examine and comment upon the provisions of the Annex (since it was not yet
available). It is thus possible that, based on experience, the two entity
governments and other interested parties may be able now to identify parts of
the Annex that are not realistic or which in fairness ought to be improved.
Accordingly, all such parties shall be afforded an opportunity to provide
written comments on the Annex provided that such comments are received no later
than 60 days following the date of this Final Award. Following receipt of any
such comments the Tribunal will either keep the Annex as is or make
modifications if appropriate. All such written comments should be directed to
the terms of the Annex and not reargue other issues resolved in this Final
Award.
64. The Tribunal strongly
urges BiH and both entities to consider, as soon as possible, whether they might
not be better off to engage in inter-party negotiations as to the final terms of
the Annex, rather than leaving the final formulation to the Tribunal. If the
parties would consider it useful, the Tribunal would be happy to make its best
efforts to enlist an international intermediary to assist in negotiating terms
satisfactory to both sides.
65. The Dayton Accords
require that the entities "implement without delay" this "final and binding"
Tribunal Award, and the District plan cannot succeed without cooperative
compliance by both entities. Therefore, serious non-compliance will be subject
to penalties in the form of additional relief.
66. Given the breadth of
the powers enjoyed by the Supervisor (until the supervisory regime has
terminated by the PIC Steering Board), the Supervisor may decide, in his
discretion. To formulate penalties to be imposed by supervisory
order.
67. To provide the
Supervisor with an alternative remedy, this Tribunal will retain jurisdiction
over this dispute until such time as the Supervisor, with the approval of the
High Representative, has notified the Tribunal (a) that the two entities have
fully complied with their obligations to facilitate establishment of the new
institutions herein described, and (b) that such institutions are functioning,
effectively and apparently permanently, within the Brcko Opstina. Until such
notification, the Tribunal will retain authority to modify this Final Award as
necessary in the event of serious non-compliance by one or the other of the
entities.
68. Without limiting the
generality of the foregoing, modification of the Final Award by the Tribunal may
include provisions for transferring the District entirely out of the territory
of the non-complying entity and placing it within the exclusive control of the
other.
69. The English language
text of this Final Award shall be the authentic text for all purposes.
__________________
_________________ __________________
Robe
B.Owen
Cazim
Sadikovic
Vitomir Popovic
Presiding Arbitrator
Arbitrator
Arbitrator
5 March 1999
The
Tribunal's District plan contemplates that, on a schedule to be devised by the
Supervisor, the new Brcko District of Bosnia and Herzegovina will be established
with the following features and characteristics (although the following
proposals are subject to modification in light of any written comments received
from interested parties within 60 days of the date of the Final Award of which
this Annex a part). All implementation issues not addressed in this Annex shall
be resolved by the Supervisor in consultation with the parties.
1. Status of District
Residents
All
residents of the District who are citizens of BiH shall have the right to elect
to be also a citizen of one or the other entity (but not both), regardless of
where they live in the District. No resident of the District shall be treated by
either entity as being subject to entity taxes or compulsory military service.
Any persons who return from the District to either entity shall be subject to
entity taxes and military service only as provided by the High Representative.
Bosniacs. Croats, Serbs, and Others shall be constituent peoples of the
District.
2. The District
Assembly
All
legislative responsibilities within the District shall he vested in the District
Assembly. The total membership, composition, and modality of selection or the
Assembly shall be as specified by the Supervisor in the. Statute for District
Government. This initial election of members of the Assembly shall take place
when and as directed by the Supervisor, and subsequent elections shall take
place as provided by enactment of the Assembly with approval of the Supervisor.
If he deems it necessary, the Supervisor may devise and incorporate into the
Statute (1) an "ethnic formula" designed to minimize the incentive for any
ethnic group to seek to increase its population in the District in order to
achieve exclusive political control, and/or (2) a provision for "vital
interests" protection.
3. The Executive
Board
The
Supervisor may include in the Statute such provisions as may be necessary (a) to
permit the day-to-day management of the Brcko District to be placed in the hands
of a professional city manager (hereinafter "the District Manager"), and (b) to
change the responsibilities of the Brcko Executive Board in such a way that it
will serve as a body giving general policy guidance to the District Manager in
accordance with enactments by the Assembly and the orders of the Supervisor. The
Statute may incorporate an "ethnic formula" relating to Executive Board
membership.
4. District
Manager
If the
Supervisor's Statute provides for a District Manager, the latter's essential
function shall be to provide municipal services as efficiently as possible to
all citizens of the District without any ethnic discrimination whatever. In the
Statute the Supervisor may incorporate an appropriate "ethnic formula" to ensure
an appropriate distribution of jobs in the public sector among the various
ethnic groups, It shall be the responsibility of the District Manager, once
appointed, to ensure that all municipal employees are compensated (in terms of
their total remuneration from all governmental and political sources) on an
equitable basis and without favoritism based on membership in any particular
ethnic group or political party.
5. Judicial and Penal
System
The
Statute shall specify the number of judicial posts at the trial and appellate
levels, and the Supervisor shall make the initial appointments of (a) the
members of the District Judiciary, and (b) the Prosecutor. Subsequent
appointments shall be made by the Brcko Executive Board subject to the approval
of the Assembly and the Supervisor. All such appointments shall be made in
accordance with any "ethnic formula" specified in the Statute. All persons
appointed to such positions must be professionally qualified.
Since
the Tribunal considers that as a general rule persons sentenced to imprisonment
should not be confined in prisons administered by the entities. the Supervisor
and later the Executive Board will be responsible for procuring (e.g., by
purchase or lease) prison premises to be administered by the Municipal Manager
(if appointed). Persons sentenced to imprisonment shall be sent to entity prison
facilities only with the Supervisor's approval.
6. Law Revision
Commission
The
Supervisor shall appoint a three-member commission with responsibility for
proposing n modifications of existing laws to produce a uniform system of laws
throughout the District. The commission shall be chaired by an international
jurist and include a representative of the Federation and a representative of
the RS, all of whom will be selected by the Supervisor. The commission's
recommendations will be submitted to the Assembly for approval and thereafter be
subject to the approval of the Supervisor. If the Assembly fails to act after a
reasonable time, the Supervisor may himself render a decision on the
commission's recommendations.
7. Law
Enforcement
The
Statute shall specify the structure of the District Police Department and shall
provide for continuing IPTF guidance. The Chief of Police shall be appointed by
the Brcko Executive Board with the approval of the Assembly and the Supervisor.
The Statute may also provide for an appropriate "ethnic formula" covering the
entire police force and staff. The Statute shall emphasize that the principal
responsibilities of the District Police Force shall be, not only to provide
normal law-enforcement functions throughout the District. but also to ensure
complete freedom of movement within the District with particular emphasis on
freedom of movement both between the eastern arid western portions of Republika
Srpska and between the Federation and Croatia.
8. Customs
Service
The
Statute shall provide for the establishment of a District Customs Service which
shall, in accordance with current practice, collect duties at the border. The
Supervisor is encouraged to ensure that the District Customs Service
aggressively and effectively enforces BiH customs law throughout the District
and in the "Arizona market". If appropriate. an "ethnic formula" may be employed
in staffing the Customs Service.
9. Taxation and Financial
Matters
After
consultations with representatives of OHR, BiH, and the two entities, the
Supervisor shall make provision in the Statute for an appropriate system of
taxation within the District. Responsibility for the preparation of an annual
District budget shall be that of the Brcko Executive Board (acting in
consultation with the District Manager, if appointed), and the budget shall than
be submitted to the Brcko Assembly and the Supervisor for approval. The budget
should include an estimate as to how much revenue will be raised within the
District. Any "short-fall" will be financed by the entities, two-thirds from the
Federation and one-third from the RS, except as otherwise agreed or as directed
by the Supervisor or his designee. Any necessary coordination of the financial
affairs of the District with those of the entities shall be provided by the
Supervisor or his designee for such purposes. See 43 of Final Award.
10.
Voting
Every
otherwise eligible resident of the District who is a citizen of BiH shall be
entitled to vote (a) for the District Assembly; (b) for the BiH Presidency and
the BiH House of Representatives by casting a ballot in the entity (if any) of
which the voter has elected to be a citizen; and (c) in the elections of the
entity of his or her choice. All such voting shall be in accordance with
regulations to be promulgated by the Supervisor, and the conduct of the
elections shall be supervised by OSCE.
11.
Symbols
The
District Assembly shall determine all symbols for the District, provided that
all such symbols shall be politically and ethnically neutral and subject to
final approval by the Supervisor. There shall be no specific flag for the
District other than the flag of Bosnia and Herzegovina. The flags of both
entities may be flown within the District, but the flag of one entity will not
be flown without the other being flown on essentially equal terms. Both the
Latinic and Cyrillic alphabets will be used on essentially' equal terms for all
official purposes. Any citizen of the District shall have the right to request
the issuance of official documents in any of the three officially-recognized
languages and shall have the right to use any such language in official and all
other correspondence, The District government and the Supervisor shall be
responsible for issuance of a District identification card.
12.
Educational Curriculum
Each
school within the District will continue to use its existing curriculum for the
remainder of the 1999 academic year. As to subsequent years, the Supervisor will
establish an Educational Committee with representation from all ethnic groups
and appropriate BiH agencies and international community officials. The
Supervisor will have final decision-making authority in such matters throughout
the period of supervision, after which that authority will be in the hands of
the Executive Board.
13.
Public
Properties
The
Supervisor shall have authority (a) to transfer, as necessary, the ownership of
public assets within the District from the entities to the District government,
and (b) to establish a system of regulation for the operation of public
utilities and. enterprises.
END
The authority of the entities to delegate their powers to
any other lowfully existing institution is confirmed by BiH Constitution Article
III(5)(a), Article IV(4)(e), and Article V(3)(i)
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