Arbitration for Brcko

The Town will Belong to - SFOR

AIM Sarajevo, 24 February, 1999

Last Wednesday in Vienna, the arbitration tribunal for Brcko chaired by Roberts Owen completed the ten-day long questioning of witnesses from B&H Federation, Republika Srpska, supervisor for this city Robert Farand and other representatives of international organizations in B&H. More than 30 witnesses gave statements to the tribunal about everything that is connected to operation of the authorities, return of refugees and organization of life in the course of the past year in Brcko and everything that was not done in the implementation of the Dayton accords.

Farand's two-day statement, which was evaluated as objective and correct by all the protagonists, marked the whole arbitration process. Farand assessed that certain moves forward have been made in Brcko but that it was not enough for full implementation of the Dayton agreement. The supervisor was considered to be the key witness and his statement that he would extend his jurisdiction to include the federal part of Brcko had a highly optimistic tone.

Apart from Farand's testimony, hardly any other witness roused arbitre Owen. The role played at the previous arbitration session by Milorad Dodik, prime minister of RS, who had left a powerful impression on the tribunal and the public, was this time played by Mirsad Djapo, chairman of Brcko assembly - the witness who had plenty to say about both the parties in the arbitration process and who arbitre Owen questioned for a long time and very extensively.

If the arbitration process in Vienna was not just a performance and a farce as certain protagonists describe it in fear that the final decision had already been made, Owen will have his hands full. Regardless of suspicion about the arbitration decision having been prepared in advance, it is a fact that all the protagonists, arbitration teams from the Federation and Republika Srpska, agreed on one issue - the decision whatever it may be should be final. This would make the past arbitration the last one and the decision will have to be consistently implemented. Arbitre Owen has announced new meetings with the participants of the past arbitration session, but as he said in different circumstances.

Reaching of the final decision, which is expected in March, will if nothing else save a large sum of money allocated for several-day long gatherings for arbitration sessions. It is sufficient to mention that the price of accommodation for a single night in European cities where arbitration sessions take place costs between 300 and 500 German marks, then there are daily allowances and travelling expenses, then lawyers' fees which according to unofficial data reach 360 marks per hour... How much of that money could have been used in reconstruction of houses in Brcko?

But, all the financial effects will not be so important if the tribunal judges by the principle of justice and legality, as member of B&H Presidency Alija Izetbegovic said in Vienna. In other words, if the solution is going to be lasting, realistic and just and if it ensures peace and stability in B&H, as explained by the chairman of B&H Presidency, Zivko Radisic. Although he advocated that Brcko be given to the Federation reminding that in 1995 he had refused to sign the Dayton accords until arbitration was introduced for Brcko, for Izetbegovic there is a compromising solution - a special district for Brcko.

Not at all by mere chance, the two members of state Presidency appeared before the tribunal on the last day of testifying, giving the arbitration process a certain political dimension. In other words, they gave the political foundation to stands of their respective delegations.

It will quite surely be difficult to sublimate everything that was happening at the tribunal and find a neutral solution which the federal team is expecting. Starting positions of the delegations of B&H Federation and of RS are diametrically opposed - the federal team had come to the session with the demand that Brcko be given to the Federation, and the delegation of Republika Srpska that it remain part of it. Witnesses and lawyers of both parties did their best to prove what they advocated, to undermine allegations of the opposing party and to impose their own by an additional argument or fact. The lawyers' teams - skilfully headed, the federal by Edvard Dilen, and that of Republika Srpska by Nikola Kostic - did their jobs professionally and cleverly. Whether they will be satisfied with the ultimate result of the arbitration procedure remains to be seen in March.

Although strongly determined by their stands, in the course of the arbitration process both delegations manifested a certain dose of flexibility and readiness for a compromise. In the very first days of the arbitration, Mirko Sarovic, head of the delegation of RS, declared that for them a compromise would be if Brcko in Republika Srpska would have international control between 5 and 10 years. A specific compromise referring to the special district for Brcko was suggested by lawyer for the Federation, Edvard Dileni, in his opening presentation of the strategy of work during the procedure. However, such a possibility of a compromise irritated witnesses of HDZ, Ivo Luzanski, who is the president of B&H Federation, and Stjepan Mikic, head of the office of member of B&H Presidency Ante Jelavic, to such an extent that unity of the federal team in tribunal was shattered. Mentioning of the district as a possible solution shook up Luzanski and Mikic so badly that an incident could have occurred in front of the arbitre. Allegedly, at the last minute HDZ was let down by its partner in power - SDA, so Luzanski made it clear that he was against the concept of the district. He even stated a completely different view of Brcko in the Federation, as a union of municipalities, like Mostar and not as the prewar municipality of Brcko.

The concept of the district met with great resistance of representatives of the delegation of RS. Regardless of the multiparty composition of this delegation, they were united in their pleading that Brcko remain in RS. Milorad Dodik even pledged his political destiny for that option. As he said, if Brcko remained in RS it would be his triumph, and if it did not, he would be ready to accept defeat.

On the other hand, during the arbitration process, Mirsad Djapo (SDP) and Kresimir Zubak (NHI) offered the solution of the district for Brcko - a special status which would imply the rule of joint institutions of B&H. Of course, not being able to give up on its strategy, SDA accepted this solution as a compromise. Obviously insufficiently convinced in the possibility of such a solution, Ejup Ganic, vice president of B&H Federation, decided that Haris Silajdzic, co-chairman in the council of ministers, would not testify, with the explanation along the following lines: "What could the council have to say when it has done nothing anyway".

On the last day, five nongovernmental organizations from B&H Federation handed in their testimonies in writing: Croat National Council, Congress of Bosniac Intellectuals, Association of Independent Intellectuals Circle 99, Jeweish Community and Serb Civic Council. They too proposed a special district of Brcko, which would be under international control in the transitional phase. To put it simply, Brcko would be neither in RS, nor in B&H Federation, nor would it be under jurisdiction of joint institutions of B&H. What is the most important thing - this solution would not be a defeat for anyone, but a victory of all forces which are in favour of B&H. Of course, however, the very word district grate's on the ears of its opponents, regardless of its form and essence.

There are several variants and possible solutions in the game, there is no doubt about that. The intention was obviously to confuse arbitre Owen. A few possibilities were presented and now a compromising solution should be found which will include international presence, but it should not be a district which is unacceptable for representatives of RS and HDZ. On the other hand, Brcko should be taken out of jurisdiction of RS, as B&H Federation requires, and then again the demand od Republika Srpska should also be met and Brcko should be left within territorial integrity of RS. Along with all that, the arbitre must keep in mind alleged recommendation of High Representative and postpone the final decision. The Office of Hifh Representative has denied the existence of such a recommendation, but Ejup Ganic insists that Carlos Westendorp is aware that he knows of the written recommendation.

The arbitration puzzle was skilfully made in Vienna. Will Roberts Owen solve it in the manner offered him, or will he pull out a joker from his sleeve, will soon be seen. One thing is clear - the decision, whatever it may be, will have to be implemented, whether the politicians like it or not. The guarantor of its implementation will be SFOR.

Mirjana MICEVSKA

AIM Sarajevo