BETWEEN LAW AND POLITICS

Status of Brcko

AIM Banja Luka, 22 November, 1996

News that the decision of the Arbitration on Brcko could be postponed for two months arrived from Sarajevo at the same time as the news that the Croatian President Franjo Tudjman was transported for medical treatment to the special military hospital in Washington. It was stated by Alija Izetbegovic along with a commentary that the postponement was unacceptable for the Federation of B&H. Those who made a connection of these two pieces of news believe that the postponement suits Izebegovic due to his hope that Tudjman could leave the political scene, and B&H would thus acquire certain negotiating advantage.

Brcko is in the focus of political interest of both entities ever since the beginning of the election campaign. First, Alija Izetbegovic, at the big promotive meeting of the SDA in the place called Brka near Brcko, promised that the Muslims would return to Brcko, and then soon after that Radmilo Bogdanovic, high official of the Socialist Party of Serbia, at a promotive gathering of the coalition of left parties called the Alliance for Peace and Progress, promised that "Brcko will be in Republica Srpska, and therefrom, in Serbia and Yugoslavia".

Regardless of whether there will be a postponement or not, tensions concerning Brcko are increasing. Pre-election promises concerning this city have turned literally into its conquering. Several hundred Muslims, some of whom were armed, decided to enter the village of Gajevi on the demarcation line between the entities. The Serbs interpreted this entreance on to "their" territory as a threat to sovereignty and threw the Muslims out by an action of their police. In an armed conflict, one person was killed. Politicians used the event for mutual accusations and called the attention to the significance of the city whose status should soon be resolved.

"Brcko is not a problem for legal arbitration, but a matter of a political solution", said Momcilo Krajisnik, member of the Presidency of B&H from Republika Srpska, to journalists, after a recent meeting with Roberts Owen in Pale. By the statement that any resolution reached by political agreement was better than an Arbitration decision, Krajisnik hinted at the possibility that Brcko might be put on the agenda of one of the meetings of the three-member Presidency. This possibility was indicated also by Prof. Dr Cazim Sadikovic, member of the Arbitration Committee of the Federation, in an interview to Slobodna Bosna, and this time it was unambiguously confirmed by Izetbegovic's announcement. This certainly means that a solution acceptible for all interested parties might be appearing on the horizon. Simply, it is the agreement that Brcko is such an important problem that it should not be left to experts to decide about it, especially not to lawyers, whose arguments are sometimes not favourable for either of their policies.

In recent public appearances of state and political officials of RS, it is repeatedly stressed that Brcko is a Serb city and that it will remain to be that. Even those who are expected to offer expert arguments first resort to political ones. Recently, Prof. Radomir D. Lukic, advisor of Republica Srpska in the Arbitration procedure, expressed his optimism concerning the status of Brcko with the following words: "It is most important that we have now become an independent negotiating party. There will not be a chance for anyone to sign anything instead of us".

Republica Srpsks demonstrated its negotiating independence by refusing to send its authorized representative (Prof. Dr. Vito Popovic) to meetings of the Arbitration Committee. He explained his absence by the decision of the National Assembly of RS that his work be frozen "until peace accords from Dayton are fully implemented". The Serb party does not wish to accept talks about the status of Brcko and believes that it is not a subject of a controversy. Prof. Dr Vito Popovic is categoric that the subject of controversy is, in fact, the demarcation line between the entirties near Brcko, which is presented in maps enclosed to the Dayton accords, and that this results from item 1 of Article 5 of the Agreement on Demarcation: "There is no doubt that it is the demarcation line between the entities, but is is not known how long it is, how deep into the territory it stretches, what is its area, and other things".

The opinion stated by Prof. Dr Cazim Sadikovic is quite the opposite: "In the very title of Article 3 of Annex 2 which refers to this issue, it is stated that it is the matter of the territory of Brcko, and not the demarcation line". Aware that this is quibbling of jurists, this experienced theoretician of jurisprudence admits that there can be no territory without the demarcation line and that the formulation itself is not so important and that both cases actually refer to the same thing.

Prof. Sadikovic believes that Brcko is much more than just a city and that due to that it was left to be subsequently resolved in an arbitration procedure. Had only the demarcation line been controversial, he believes, resolution for it would have been found in Dayton. "All legal principles speak in favour of the Federation B&H. Not a single argument speaks in favour of Republica Srpska, not even the established facts, because it was acquired by genocide", says Sadikovic.

Professor Popovic is resolute: "Territorial principles are well known from Geneva according to which territories of entities must be integral, cities cannot be divided, corridors must be wide enough for safe passage and borders should be drawn in such a way not to cause conflicts. According to these principles, the Muslims have got the corridor leading to Gorazde over ethnically cleansed Serb territories and the integral city of Sarajevo. According to these principles, even if we had not got Brcko, we should have got it". To the argument of the Muslim party that before the war, 55 per cent of the population of Brcko were the Muslims, the Serbs reply with the argument that almost ethnically purely Serb cities of Drvar, Grahovo and Petrovac were given to the Federation. As an additional argument, Dr Popovic states the fact that according to every census, both of the population and the land, Brcko was a Serb city, and that the demographic picture has changed before the war when 20 thousand Muslims moved to Brcko mostly from Sandzak, and illegally constructed 4,799 houses there.

In the economic part of his survey about Brcko, the Muslim-Croat party stresses significance of the river Sava for navigable communication and as a link via the Danube with the Black sea and Central Europe, and Prof. Sadikovic says that Brcko has a European significance and that due to that a European solution should be found for it. To these arguments, the Serbs respond by claiming that the Federation has the port in Orasje and the town of Odzak on the navigable part of the Sava. "The port in Brcko has never had any special economic significance for B&H. It is especially not true that it served for the region of Tuzla as a communication and economic terminal. There are precise data about it. In the regional plan of B&H, Brcko is not even mentioned. All lines of communication and exits from B&H go along river valleys, and in the north main communication centres are Orasje, Brod and Gradiska", explains Dr Popovic and stresses epsecially the fact that free flow of people, goods and capital is agreed by the Dayton accords and that these are not issues which need to be discussed by the arbitration.

Serb demands forwarded to the Arbitration Court have not been made public yet. An expert team which is assisting Prof. Dr Popovic refuses to state its arguments. Dr Dusko Jaksic, Director of the Economic Institute in Banja Luka and author of the so far only study on population, territory and resources of the Republica Srpska, admits that a study is in preparation which will incontestably prove that Brcko must be given to the Serbs. From public appearances of the people from the state and political top echelons it can be concluded that the Serb party will demand widening of the corridor to 20 kilometres. One of their arguments is 0.30 per cent of the territory which RS has not been given within its 49 per cent. The lower limit of the Serb demands, according to the words of Prof. Lukic, is the current situation on site.

To the question if the arbitration may reach a decision without him and how the controversy can be resolved, Prof. Popovic replies: "There is no such possibility. We did not even get involved in the Arbitration procedure. In such legal situation, Republica Srpska may be invited to delegate a new representative. If it is true that there are no maps which the Annex on demarcation refers to, the signatories of the Dayton accords should sit down and reach an agreement what the subject of Arbitration really is".

A comparative analysis of arguments of legal experts of the interested parties does not imply the outcome of the controversy but rather their starting positions. Logics on which their demands are founded lead to the conclusion that the arbitration is on a dangerous side-track. Everything seems to imply that the opposed parties are not even considering the possibility of return of banished persons, free movement of people and free flow of goods and capital and that Brcko is a scene of a new battle for territories. If the problem is established in this manner, and all things considered it is, then the outcome of the controversy causes concern. Brcko is becoming a challenge to the Dayton accords.

Since politicians have already deprived logic of jurisprudence and of life itself of every sense when they drew borders between entities and consolidated statehood of their respective entities, not a single solution for Brcko will be satisfactory for either party. It could be just another case of discreditation of international law and legal principles.

(AIM) Branko Peric

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