Henry L. Clarke was the international Supervisor of Brcko District, Bosnia and Herzegovina, from 2001-2003. He spoke at an EES noon discussion on February 4, 2004. The following is a summary of his presentation. Meeting Report 293.
Less than four years after its foundation, the Brcko District has become a leader in reform in Bosnia-Herzegovina. It was the first jurisdiction to completely reorganize and rehire an independent judiciary, and the first to introduce and implement modern criminal and civil codes. Brcko established the first truly multiethnic police force, which was the first to be certified as qualified by the UN Mission. The entire civil service was rehired on a more transparent, multiethnic basis, with new salary scales and modern budgetary and procurement systems. It was the first to reintegrate its schools into a single multiethnic school district. Brcko was among the first to establish a business-friendly climate for registering new businesses and to re-register old firms in order to weed out fictitious ones. It has been a leader in indicting former officials for abuse of office, in uncovering customs fraud, and developing mechanisms to discourage conflicts of interest. While certainly not the first place in Bosnia to rebuild, Brcko has successfully attracted foreign investment, privatized a large part of its state-owned companies and apartments, rebuilt thousands of homes and launched an economic recovery that seems to have momentum. The process of returning usable housing to original owners or occupancy-right holders is essentially complete. It has resolved sticky post-war issues, such as renaming streets and removing nationalist monuments peacefully through inter-ethnic negotiation.
Brcko has come far, considering that it was the scene of a vicious ethnic cleansing campaign and a brutal concentration camp. It had been bisected throughout the war by a confrontation line, and nearly 40 percent of its housing was destroyed. Its status could not be agreed upon during the 1995 Dayton peace process, but was left to binding international arbitration. When no agreement was reached between the Muslim-Croat Federation and Republika Srpska, in 1999 the Brcko International Tribunal issued its Final Award creating a separate District in the territory of the former municipality spanning both sides of the former confrontation line. The new district began functioning in March 2000. Given this history of conflict, how did Brcko move forward so rapidly? Let me offer a few subjective answers on what makes the reform process work.
Security is a prerequisite
Security is essential, perhaps an absolute prerequisite for basic reform. People tend not to risk implementing reforms before addressing risks to their lives and property. In Brcko, SFOR was an overwhelming, unchallengeable force guaranteeing physical safety and stability. The size of the SFOR contingent has been slowly shrinking since 2001 and last year, only a fraction remained. Nevertheless, SFOR is still a respected deterrent to armed rebellion and intervention from outside the District.
The Brcko police force was reintegrated into Bosnia's first multiethnic police force, and has been able to exercise its authority throughout the District. In a public opinion survey conducted in 2002, the Brcko police enjoyed the strongest public support—about 50 percent—of any public institution. Thus, although the Brcko police lacked modern management and technical expertise when I took up the post as District Supervisor, they had already achieved a key step in ensuring security—the respect of ordinary people from all ethnic groups.
One clear example of how the presence of SFOR and the creation of a multi-ethnic police force have helped prevent violent confrontation and allow reforms to proceed occurred in the summer of 2001, when the Muslims decided to rebuild the obliterated White Mosque in downtown Brcko. Their timing came shortly after the disastrous riots in Banja Luka and Trebinje, where Muslims had also tried to start reconstructing downtown mosques but were prevented by mobs. Every religious group had the right to reconstruct, but the Muslims wanted to start in the summer of 2001, when I was giving top priority to reintegrating the schools. Some locals and SFOR staff felt the school issue would lead to violence too. Yet in August and September we began integration and allowed work to start quietly on the mosque, and there was no violence. Many factors contributed, but surely the police and SFOR, working together, were successful deterrents.
Currently, the police have a professional leadership, and I am sure that they can handle the District's internal needs. But we still needed both SFOR and the police in early 2003 to peacefully demolish illegal structures blocking reconstruction of the Arizona Market. Therefore, if SFOR departs altogether and the District remains demilitarized, what will deter the kind of extremist outside intervention that destroyed the peace in 1991?
Rule of law comes next
Judicial, prosecutorial and legal reforms create the foundation for other reforms, both in the economy and the government. This is particularly important in Bosnia and Herzegovina, where nationalists protect corruption, which finances nationalist extremists. Brcko began judicial reform first, on the basis of the Final Award, by forming a single judiciary out of the preexisting courts and using the opportunity to completely rehire all judges and prosecutors on a competitive basis. At the same time, modern criminal and civil procedure codes were introduced. The new court system went into effect in April 2001, but training and mentoring of the judiciary continued until the end of 2003.
This legal foundation became one of Brcko's advantages in attracting foreign and domestic private investment over the last two years. Investors could rely on the courts' ability to enforce their contracts. Moreover, Brcko became the first place in the country to indict and try politically important people for corruption—notably a former judge and a former municipal president.
Reforms must work at the local level
Leadership, coordination and diplomacy at the local level were the factors in the reform process that I could personally influence, and I consider them decisive. When the international community attempts to reform failed states recovering from war, it must not expect reforms to be self-generating or self-implementing. People in Bosnia and Herzegovina knew what they needed—jobs, economic growth, less corruption, justice and a responsive government—but not how to get them. For Brcko, there could be no question of "top-down" versus "grass roots" reforms. To succeed, every major reform had to be introduced and sold at every level. The effort had to be sustained long enough for the new structure—whether multiethnic schools, a reformed judiciary or privatization —to begin working smoothly and to prove its worth. To that end, coordinating at the local level was essential. It is easier to lead, to coordinate and to negotiate reforms when you are meeting regularly, face to face, with all the key actors. It is also easier when you have a small professional staff working from the same script.
Quite to the contrary, the 2001 Office of the High Representative in Bosnia and Herzegovina was a large, centralized staff in Sarajevo, which shared little authority and information about its plans with a deliberately weak set of field offices. With the exception of the returns process, which did have personnel at the local level in the field, OHR in Sarajevo could develop and even impose new laws but relied almost entirely on existing Bosnian institutions to implement them. The High Representative at that time, Wolfgang Petritch, recognized and often cited the need for "ownership" of reform by the local people, but he did not have an effective mechanism for achieving it. In Brcko, we could not guarantee "ownership," but we could make reforms work, and that did give us support for more reforms.
A clear mandate
A clear mandate may not be an absolute requirement, but in Brcko District it was of enormous value. The Supervisor's role is to implement the Final Award of the Brcko Tribunal, which is clear and legally binding. In most respects it is much more specific than the High Representative's mandate from Dayton.
Brcko's education reform may offer a good example of how a clear mandate helps. The Final Award is crystal clear: the Supervisor must integrate the schools within a single system in which every citizen has equal access to education. We knew there was serious local opposition to this, so we used every resource and tactic to do this job, since we could not fulfill the mandate with the existing segregated schools. Some expected us to fail, but that was not an option. My only choice was whether to launch reintegration in 2001 or wait another year, although I had ample flexibility on how to do it. Now the Brcko schools are proving that a multiethnic society can succeed, and the Final Award deserves much of the credit.
In some parts, the Final Award is less specific, but even so it clarified the goals and priorities that the Supervisor was required to achieve. The most unspecific mandate in the Final Award is the requirement that the Supervisor revitalize the economy. The Award makes suggestions regarding the river port, foreign assistance, and so on, but there is no hard measure of completion. Yet, I could measure every idea in the economic field against the general goal of economic revitalization: Will this idea help revitalize the economy, or not? Would something else work better?
Suppressing nationalist politics
The Final Award empowers the Supervisor to determine when elections should be held for Brcko institutions. I refused to make that call for over two years in order to ensure that all the institutions were adequately prepared. I was criticized for delaying that decision, but I do not regret a single day of the delay. I believe there is a lot more to democracy than holding an election, and in 2002 Brcko was not ready. Moreover, since Brcko residents did participate in Entity and state-wide elections in 2000 and 2002, they were not excluded from political expression altogether.
The Final Award also states that the Supervisor cannot conclude his mandate until he can determine that the District's institutions appear to be functioning effectively and permanently. One measure of institutional permanence is whether Brcko residents themselves would be able to guide these institutions democratically, and resisting pressure from hostile political parties and governments outside of the District, especially those based in Banja Luka and Sarajevo. In 2001, there were two examples of efforts by those capitals to prevent the Brcko Assembly from functioning independently. First came deadlock on the draft law on privatization, followed by the Assembly's inability to pass the law on primary and secondary education, which reintegrated the schools. As a result of the deadlock, I had to impose the law on education and proceed with privatization through a series of Supervisory Orders. Obviously, these were not signs that the main political parties were ready to allow Brcko District institutions to function effectively following elections.
Amazingly, the Serbian Democratic Party (SDP) withdrew from the Assembly in September 2001 and forfeited the opportunity to participate in the legislative process. They claimed it was a local decision but I do not believe it was. The apparent goal was to discredit the international reform process, including the absence of elections. Instead, the absence of the SDP helped curb nationalist politics in the District. It was not eliminated altogether, however, and reappeared when the Serbs blocked the Assembly's confirmation of a professional police chief in early 2003, and when Croats fought hard to obtain extra representation under the 2003 Brcko election law. Despite these flare-ups of nationalist politics, the Assembly was able to discuss reforms on their merits.
What finally persuaded me to call for District elections (set to take place during country-wide municipal elections in 2004) was the 2002 public opinion survey, which showed wide-spread support for the multiethnic institutions. In 2003, the National Democratic Institute and OSCE provided political party training, helping the Brcko party organizations to strengthen their ties to Brcko residents. Just before my announcement, the Brcko Assembly passed an election law that promised free and fair elections, even though it disappointed the Croats. The 2004 elections offer a good framework with ample time to prepare. Although Brcko still needs a lot of important legislation, some of the more sensitive issues have been settled and the legislation increasingly has been ethnically blind.
Early on in my assignment to Brcko, a very prominent and experienced European Ambassador astonished me by attributing the relative success of Brcko District's reforms to the Supervisors' greater use of their power to intervene. I do not think he was right, but it was a useful warning. In my two and one-half year tenure, I imposed only one law, compared to hundreds imposed by the two High Representatives in the same period. The Brcko Assembly passed a lot of innovative legislation, including some that had to be imposed in the Entities. It is probably true, given Brcko's small size, that I removed relatively more public officials, usually by instructing the Mayor to do it. Perhaps I had better information and thus more frequent cause to do so, since I was working at the local level.
I would not argue for giving an international Supervisor less power, but I found this power was most effective when held in reserve. Politicians hate to make hard choices or to be responsible for any sacrifice. Nationalists loved to blame the Supervisor for not making decisions that they knew were unacceptable to the other ethnic groups. But the District's institutions would never become effective or permanent if the Supervisor alone made all the hard choices. My staff and I worked hard to persuade rather than force local institutions to act, even on matters essential to my mandate.
I also used the absence of a specific mandate in the Final Award to avoid most cultural, historical and purely national issues altogether. In Brcko, at least, the moderates then did the heavy lifting, once they knew I would not. They learned the art of legislative negotiation and compromise, because they needed a multiethnic consensus. Thus, with only my encouragement, streets that had been renamed during the war were all renamed again for uncontroversial figures from all ethnic groups, the process of reintegrating sports teams began and a statue of Draza Mihailovic that had aroused attention far beyond Brcko was moved from the center of town to an Orthodox cemetery. History is a burden in Bosnia and Herzegovina, no doubt, but Brcko shows there are reasonable people in all three groups that remember how a multiethnic society can serve everyone.
Lots of money has also been cited as the reason for Brcko's successes. International technical assistance—especially US funding for legal, judicial and administrative reforms and many smaller projects—was essential. But the really large sums from international assistance were spent on reconstructing housing and infrastructure, commensurate with the extent of the devastation in the District. Unquestionably, Brcko's successful revenue collection—also reflecting foreign technical assistance, not big money—has given the District much larger resources for the needs of the public sector than any other part of Bosnia and Herzegovina. This is one of the payoffs of reform.
Will Brcko's reforms last?
There is no such thing as an irreversible reform, if people choose leaders who reverse it. So, the question remains, will the people of the District defend the progress made against those who oppose it? And how hard will the enemies of reform try? Nationalist extremists based outside the District, both official and clandestine, remain the largest threat to Brcko. The District still needs a military or paramilitary deterrent to organized violence. Even without violence, if Bosnia and Herzegovina breaks into two or three states, the District would be difficult to sustain. But if Bosnia and Herzegovina becomes a viable federal state, with a single economy and effective government at the center, the District can be a source of multiethnic and economic strength, not weakness.
The reforms adopted in Brcko are growing roots, and reforms—especially those increasing transparency and accountability—tend to support each other. The new Supervisor, Susan Johnson, still has a big job to do, starting with holding free, fair and independent elections this year. Strengthening the District's institutions, its links to the state and its continued economic development, while defeating organized crime and corruption, will be challenging, but I am sure she will succeed.