Case 1: Ashdown Reform Proposal (2004–2005)
Following up on the Functional Review report and drawing on the successful experience of the Defence Reform Commission, the HR established the Police Restructuring Commission (PRC) in July 2004 and entrusted it with the task of drafting the necessary legislative and constitutional changes. The PRC consisted of political representatives from the two entities (ministers of interior), police professionals (directors of police), local representatives (selected mayors) and members from international organisations and diplomatic missions in Bosnia (EUFOR, EUPM, US, UN etc.). Wilfried Martens, a former Belgian prime minister in whose mandate Belgium reformed its multi-ethnic police, was appointed as the Chair and authorised to draft the final conclusions and recommendations.16 Although it had never previously attempted to influence the content of police reform in aspiring states, the EU issued a list of three conditions that police reform needed to fulfil before Bosnia could start Stabilisation and Association Agreement (SAA) negotiations:
1. exclusive state-level competency on budgetary and legislative matters;
2. local policing regions designed on effectiveness criteria not politics; and
3. no political interference in policing.17
16 'Decision Establishing the Police Restructuring Commission', Office of the High Representative. Sarajevo, 5 July 2004. Available at: ohr.int/ohr-dept/rule-of- law-pillar/prc/prc-key-doc/default.asp?content_id=34149 (accessed 5 November 2013).
17 'Letter from Rt. Hon. Christopher Patten, Member of the European Commission to Mr Adnan Terzić, Prime Minister of Bosnia and Herzegovina', 16 November 2004. Available at: ohr.int/ohr-dept/rule-of-law-pillar/prc/prc-letters/pdf/patten-letter. pdf (accessed 5 November 2013). The logic behind EU's involvement was based on providing an additional, external pull for police reform by anchoring it to the country's bid for signing the SAA. The HR expected that the prospect of signing the SAA, combined with the informal negotiations setting of the new reform commission, would result in an outcome similar to that of PfP membership and Defence Reform Commission's in the case of military reform.
However, there was a significant difference in procedural rules between the defence and police reform commissions. In the PRC, the Chair could decide when a sufficient level of consensus has been reached, rather than waiting for actual consensus between members to emerge. The implicit removal of each side's veto power in the negotiations immediately raised concerns among politicians in the RS. As a result, the RS parliament instructed the Serb members of the commission not to agree to any reform that would entail changes in the RS Constitution. In doing so, it rejected any transfer of competencies from entity to state level. This initial objection of RS members was not addressed by the HR, who insisted on keeping the rules of PRC work as they were, missing an opportunity to build an initial consensus among domestic elites. Although modelled after its military reform predecessor, the PRC failed to perform the role that the DRC did for defence reform – provision of a safer environment where objections could be addressed before the formal institutions received the legislative proposal. Though intended as one, the PRC could not work as an informal institution to facilitate elite compromise. Serb elites did not see the PRC as a forum where their concerns would be taken seriously, since the unilateral decision of the Chair could completely ignore them in the final report, so they made sure that no concessions would be made informally before the official reform proposal reached parliament. The discussions in the PRC revolved around two major issues: improving the central oversight and co-ordination of police forces by establishing state-level structures, and re-designing the local policing areas (LPAs). On the first issue some level of consensus could be reached, since police professionals from both entities agreed on the need to improve the co-ordination and control of police forces. However, even this needed political approval from RS political elites, who needed to authorise any transfer of competency from entity to state level. On LPA boundaries however, there was no consensus. The PRC worked with three options: with five, ten and eleven LPAs respectively. However, all three options cut across the inter-entity boundary line (IEBL) between the two entities, to which both Serbian and Croat representatives objected. At the end of the six-month mandate of the commission, the Chair's final report could only conclude that no political consensus had been reached. He noted that there was professional consensus on the issue of state control and oversight, suggesting that further reform efforts should be directed towards widening this consensus, while for LPA boundaries, where agreement seemed impossible, he advocated greater flexibility by the HR.18
18 Office of the High Representative, 'Final Report on the Work of the Police Restructuring Commission in Bosnia and Herzegovina', December 2004. Available at:
Contrary to the PRC recommendations, Lord Ashdown refused to seek compromise with the RS elites and decided to pursue both state-level coordination of police structures and cross-IEBL local policing areas. RS politicians, who had been unconvinced in the merits of police reform in the way Ashdown had pursued it from the start, only became less inclined towards the entire project when he refused to make any concessions at each consecutive step. By the time the PRC report was published in January 2005 and a reform proposal sent to entity parliaments for consideration, it was becoming clear that the RS assembly was going to reject it. Both the government and opposition in RS were united in rejecting the proposal and willing to use entity veto to prevent its adoption. Indeed, over the following nine months to October 2005, the RS parliament rejected three different versions of the police reform proposal. This forced the HR and EU to go back on their initial conditions and demands, much to the discontent of Bosniak political elites, who had subscribed to the initial reform proposal and committed to fulfilling the three EU conditions.
After the initial rejection of police reform proposal in January 2005, resistance in the RS parliament intensified. Despite the high-level visits of EU Foreign Policy High Representative Xavier Solana and EU Enlargement Commissioner Olli Rehn, who demanded a breakthrough and progress with police reforms in order to start SAA negotiations, the popular and political-elite attitudes in RS remained negative.19 When under the heavy international pressure RS President Čavić agreed to certain concessions, local delegations from his own party (SDS) rejected his stance. When the parliament rejected the police reform proposal for a second time on 30 May 2005, ruling SDS members voted against it along with the opposition. Transferring further competencies to the state had always been an unpopular project in the RS, but Ashdown's inflexibility in negotiating the terms of police reform added to the prospect of losing control over the police, making Serb politicians implacable on the issue.
If Lord Ashdown had been hoping that the pull of EU conditionality and starting SAA negotiations would be sufficient to induce concessions and accommodation by the Serb elites, he had given up these thoughts by the summer of 2005. He amended the initial proposal to make it more acceptable in RS and in September 2005 negotiations on police reforms resumed with a new proposal tabled by the BIH Prime Minister Adnan Terzić. His proposal included some concessions to Serb demands and allowed for longer transition periods for transferring police competencies to state level. Although a clear concession to Serb demands and an accommodating step by the HR, this new proposal did not prove sufficient to overcome Serb resistance. The parliament in Banja Luka rejected the amended
ohr.int/ohr-dept/presso/pressr/doc/fi (accessed 5 November 2013).
19 Statement by Ollie Rehn, EU Commissioner for Enlargement for police reform, 29 April 2005. Available at: ohr.int/ohr-dept/rule-of-law-pillar/prc/prc-pr/default. asp?content_id=34584 (accessed 5 November 2013). proposal, which for them had remained fundamentally the same – demanding
transfer of police from entity to state control.
Trying to avoid a complete failure of the reform process, as a last resort the HR used sanctions against the ruling SDS in RS to pressure them into accepting the proposal. Using some incriminating information about illegal acquisition of party funding, he threatened the SDS with 'death by a thousand cuts', introducing fines and freezing party assets to induce more accommodating behaviour. Soon after, the pressure resulted in RS President, Dragan Čavić, producing a new watered-down proposal on police reform. The proposal did not include any reference to changing the borders of local policing areas, but contained a list of caveats to using police reform as a precedent for any other future efforts to transfer competencies from entity to state level.20 Although this proposal had very little in common with the initial police reform idea, it was accepted by all: the HR, the EU and political elites in the Federation. After exhausting both sanctions against RS and promises about SAA negotiations, external actors' efforts to facilitate ethnic accommodation have failed. It seemed that no further concessions would be gained from the Serbs and the only alternative was to completely abandon the whole reform. By mid-October 2005 entity and state parliaments had adopted Čavić's agreement on police reform and on 21 October 2005, the European Commission recommended starting SAA negotiations with Bosnia to the European Council.
Although SAA negotiations started soon after, not much in the way of police reform followed. The public and adversarial nature of negotiations process drained the commitment for implementing reform from all sides. It was clear that Serb elites preferred no police reform to any weak version of it, while Bosniak elites felt that what was agreed was no real reform and felt betrayed by the international community who had given up its initial conditions. The agreement itself contained no executive provisions apart from establishing a Directorate for Police Restructuring Implementation (DIPR) which was to come up with a plan for implementing the agreed principles of police reform. Implementation was slow, and once Paddy Ashdown left the HR post in January 2006, the reform came to a complete standstill.
Why the Ashdown Proposal Failed
This case illustrates the difficulty of ethnic accommodation when political elites are expected to give up their exclusive control over a policy field and over a powerful political tool such as the police. The extensive territorial autonomy that entities andscantons enjoy in Bosnia combined with the functional autonomy of entities regarding policing resulted in major resistance among Serb political elites to giving up their exclusive control over police and sharing it with other ethnic
20 Office of the High Representative, 'Agreement on Restructuring Police Structures in BIH', 5 October 2005. Available at: ohr.int/ohr-dept/rule-of-law-pillar/prc/ prc-key-doc/default.asp?content_id=36200 (accessed 5 November 2013). groups at the central level. Transferring police competencies to the state level would have robbed the political elites in each entity and canton from the control over an instrument they used to reward their supporters through employment and intimidate their opponents, while scoring political points with the electorate for protecting the 'sovereignty' of their entity.
Another power-sharing mechanism, veto powers had a very tangible impact on the outcome of the negotiations even though they were used to prevent agreement over police reform. Thanks to veto mechanisms available to them, Bosnian Serb politicians were able to block the progress of the proposed police reform. On several occasions the RS parliament officially rejected the proposal, which protected the Serb population from having an unpopular policy measure imposed on them, meaning vetoes served their intended purpose of protecting the ethnic group from being outvoted. However, the actual and repeated use of vetoes made it more difficult to accommodate and accept the amended proposal when it finally arrived. Unlike the implicit threat to use veto, its actual use made it more difficult for Serb politicians to reverse their course and make concessions.
Although the High Representative had placed the issue on the policy agenda and established a reform commission, overall, external actors failed to play a fully enabling role in this case. Lord Ashdown's refusal to accommodate the Serb politicians, in terms of the rules of procedure in the PRC at the start of the reform talks, resulted in increasing resistance on the Serb side throughout the process. The HR failed to provide the informal space where the details of this ethnically and politically sensitive reform would be negotiated without the antagonism of invoking vetoes in parliament. Although successful in aligning the rest of the external actors behind him and strengthening the EU conditionality for police reform, Lord Ashdown failed to persuade the Serb politicians of the merit of his proposal. His eventual threats and coercive measures were successful in eliciting some compliance by RS elites, but they failed to strengthen the credibility of external actors in the country and substantially reduced the willingness of Serb politicians to implement any of the agreed provisions.