III. THE NEED FOR A CHANGE IN GOVERNANCE
- 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.
- 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.
- 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."
- Additionally, as further explained below, local political leaders have seriously obstructed the development of a democratic administration in Brcko.
A. The Practical an Political Forces Impending Two-Way Returns
- 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.
- 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.
- 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.
- 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 decision2.
B. The Discouragement of Serb Departures from Brcko
- 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.
- 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.
- 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.
- 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 Dayton3.
C. The Discouragement of Bosniac and Croat Returns to Brcko
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
D. The Failure to Facilitate Local Multi-Ethnic Government
- 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.
- 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.
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