Beware!! This is a long note, with extensive footnotes at the end of each of the following four chapters.
I am putting this “Hand-Over Note of the Head of Mission, on occasion of the termination of EUPM, and the establishment of follow-on assistance to law enforcement and the criminal justice system of Bosnia and Herzegovina, under the Instrument of Pre-Accession Assistance and under the European Union Special Representative” into my archive here, for the access of interested readers.
In Bosnia & Herzegovina, the United Nations established a UN peacekeeping operation after the end of the war, with a police component which came to be known as IPTF (International Police Task Force). It lasted for seven years, ending in 2002. The end was not an end of peace operations, but basically a transition for UN peacekeeping into the first ever peace operation of the European Union, the “European Union Police Mission in Bosnia & Herzegovina EUPM”, which lasted for ten more years. Between 2004 and 2008 I supervised this Mission from EU Headquarters in Brussels. Between 2008 and 2012 I became the last Head of Mission of the EUPM, following on, and ending the work, of four EU Police Commissioners, and friends of mine, including my dear friend, the late Sven Frederiksen of Denmark.
This marked the end of seventeen years of peace operations of UN and EU in Bosnia & Herzegovina, and I note this here as one important and successful example for that our work, once begun, requires more than a decade of work. Yet, even after the end of UN peacekeeping, or the transition into a regional follow-up, more work is necessary.
This is what this hand-over-note is about. I plan more articles and documentary work, referring to other successful peace operations, like the UN peacekeeping efforts in Timor Leste, or in Haiti, or other places. I will continue to write about specific missions, you will find them with their tags, and generally under the category “Peace Operations”.
Chapter One: Introduction – On Sustainability
“Restoring confidence and transforming security, justice, and economic institutions is possible within a generation, even in countries that have experienced severe conflict.”
World Development Report 2011, Conflict, Security and Development; The World Bank, April 2011; http://www.worldbank.org
With the planning process for establishing the European Union Police Mission in Bosnia and Herzegovina running through the year 2002, the European Union aimed at following on the tasks that were considered being completed by the United Nations International Police Task Force, under Annex 11 of the General Framework Agreement for Peace. IPTF operated for seven years until the end of 2002, and carried out and imposed rigorous reforms such as physical separation of police from the intelligence services, certification of local police through a vetting procedure aimed to bring local police to international standards of integrity and professionalism, or accreditation of local Law Enforcement Agencies according to basic democratic standards. In that, IPTF had begun a process of building a democratic and sustainable police force in the country.
Throughout EUPM’s following almost ten years of contribution to assisting Bosnia and Herzegovina, the term “sustainability” is frequently used. Council Joint Action as of 11 March 2002 on the European Union Police Mission states: “(2) In line with the general objectives of Annex 11 of the Dayton/Paris Agreement, the European Union Police Mission (EUPM) should establish sustainable policing arrangements under BiH ownership…”.
The Mission Statements given to EUPM with five consecutive Concepts of Operation use the term as follows:
- (1) CONOPS EUPM I, 09.04.2002: “à établir des dispositifs de police durables sous gestion de la Bosnie-Herzégovine”;
- (2) CONOPS EUPM II, 04.11.2005: “the EUPM has made considerable achievements in developing sustainable policing arrangements under BiH ownership”;
- (3) CONOPS EUPM II, 08.10.2007: “has made considerable achievements in developing sustainable policing arrangements under BiH ownership”;
- (4) CONOPS EUPM III, 14.07.2009: “has contributed in developing sustainable policing arrangements under BiH ownership”
- (5) CONOPS EUPM for transition phase, 12.10.2011: “has contributed in developing sustainable policing arrangements and in enhancing the police- prosecutors cooperation in the criminal justice system under BiH ownership”.
By the end of 2010, half-way through the then two-years mandate phase of the Mission, EU Member States decided on conducting a strategic review on the EUPM, which was subsequently carried out under the lead of the Crisis Management Planning Directorate (CMPD), a part of the European External Action Service (EEAS).
The “Review At A Strategic Level On The Future Of European Union Police Mission (EUPM) In Bosnia and Herzegovina” was presented to EU Member States early 2011. It measured the progress in mandate delivery against the desired end-state, as it was formulated in the CONOPS 12096/09: “The BiH authorities will have taken significant steps towards a sustainable and effective capability in the fight against organised crime and corruption and will have demonstrated the ability to deliver results. This will include an enhanced systematic exchange of information between relevant LEAs in BiH, including improved police-prosecutor relations, improved regional and international cooperation, including coordination with relevant EU LEAs and an adequate accountability mechanism.”
In it’s assessment on mandate delivery, the Review notes: “A little more than half way through its mandate, the mission has achieved significant progress in all areas of its mandate.” The Strategic Review identified the satisfactory progress made towards sustainable development on the level of individual institutions. Secondly, and in the context of this writing more importantly, the Review assessed the development in the area of joint capacities as not being sustainable yet.
The establishment of further technical assistance to law enforcement and criminal justice in Bosnia and Herzegovina after the expiration of EUPM’s mandate, notably by way of support under the Instrument for Pre-Accession, is leaving a second core EUPM task for the transitional period between January and June 2012, as defined in the CONOPS as of 12.10.2011: “Smooth handover of EUPM’s remaining key tasks to a EUSR Rule of Law (RoL)/Police Section.”
Thus, EUPM’s tasks to be handed over to the EUSR are those that are considered, including through the CMPD-led review, as not having achieved a sustainable degree of establishment yet. These topics naturally sit on a high strategic level of EUPM’s work, and have required substantial work of the EUPM throughout its entire life-cycle.
This paper is my personal contribution, as the fourth and last Head of Mission of the European Union Police Mission in Bosnia and Herzegovina, to the process of documenting EUPM’s legacy. It is focussing on selected priority areas where further development of the system of providing police and criminal justice, contributing to security and the rule of law, could not progress to a satisfactory degree, could not reach “sustainability”, and where I feel that further strategic assistance should be considered.
Naturally, this paper excludes the documentation of the many widely acknowledged successes that EUPM had. Such documentation can be found in more detail in other parts of the legacy documentation. They are excluded here, and assistance to further improvement will be conducted under IPA programming.
This paper’s objective is two-fold:
(1) To serve as a hand-over note on remaining key areas of concern to the European Union Special Representative;
(2) To contribute to a lessons-learned process within the European Union.
For eight years, I have contributed to the work of EUPM, both in my capacities within structures that are known post-Lisbon as “Civilian Planning and Conduct Capability CPCC”, a part of the European External Action Service EEAS, between 2004 and 2008, and in my current capacity as Head of Mission of the EUPM, between 2008 and now.
Under the title “On sustainability”, my contribution addresses three areas that have been a permanent challenge for the EUPM:
(1) EUPM’s experience with the support to development and implementation of police reform and restructuring processes is covered in the chapter “On Police Reform”;
(2) Experiences with the support to the development of capacities of law enforcement that go beyond the individual capacities of each agency, and that require strategic and policy support including through relevant Ministries, are covered in the chapter “On Institutionalised Cooperation”;
(3) Experiences with the support to the development of a system of internal and external checks and balances aiming at ensuring that police carry out their duties properly and are held responsible if they fail to do so, are covered in the chapter “On Accountability”.
Two remarks should be kept in mind when reading the following three chapters:
(1) For many years, the International Community engaged in efforts reforming the police in BiH. Parts of this have faced considerable domestic controversy, notably the efforts to restructure the police. Within the domestic context of BiH, the term “Police Reform”, therefore, is often used with a limited understanding: Whilst reforming the police may include efforts to restructure the organizational and legal setup, it also includes many equally important aspects, such as procedural, managerial, educational, or administrative. In BiH, the term “Police Reform” is mostly reduced to the understanding of “Police Restructuring”, and has subsequently become politically contentious. Until today, the term can not be used without risking antagonistic reactions. When ever EUPM engaged in efforts to assist in increasing efficiency and efficacy of the complex police system in BiH, it had to be mindful of that. However, efforts between late 2008 and 2012 assisting in increasing institutionalised cooperation faced the same political controversy as was the case with Police Reform; and for the same political reasons. The deficiencies that restrict the system’s overall readiness to engage in institutionalised cooperation on an European level therefore continue to exist.
(2) The chapter “On Accountability” relates to a larger and long-term development of Bosnia and Herzegovina’s system within the context of fully applying underpinning democratic principles of governance. Inter alia, the chapter documents a legal dispute that became visible in the Federation of Bosnia and Herzegovina over the recent years. This dispute is, in reality, a political dispute, with EUPM’s main concern sitting with the worrying degree of politicisation of policing. However, it is important to stress that EUPM’s decade of experience does not restrict this concern to the Federation of Bosnia and Herzegovina. Rather, this is a much wider issue, prevalent in all areas of interaction between police and politics. The fact that this became so visible in the Federation has only to do with the emerging controversy between political parties on Laws on Internal Affairs, which has not been the case elsewhere.
This hand-over note would not have been possible without the invaluable contribution and critical review by a few dedicated individuals, each of them with more than a decade, in some cases with almost two decades of their personal witnessing the development in Bosnia and Herzegovina. I am extremely grateful for their help and advise.
Lastly, this is my place to put on record that the work of EUPM would not have been possible without the professionalism and dedication of law enforcement and criminal justice system professionals, and Ministers, from Bosnia and Herzegovina. It has been a true privilege to assist in their efforts to contribute to the security and the rule of law for the citizens in Bosnia and Herzegovina and thus to association with and accession to the European Union.
Sarajevo, May 2012
Head of Mission / Police Commissioner
European Union Police Mission in Bosnia and Herzegovina
Chapter Two: On Police Reform
By April 2008, the process that is mostly referred to as “Police Reform” (and which mainly has been an exercise on restructuring Police) had generated a result that was considered acceptable both for BiH and for the EU for entering into the signing of the Stabilization and Association Agreement (SAA). Until today, the results of Police Reform remain politically controversial, considered being not satisfactory by some, whilst being the maximum compromise with no possibility to re-enter the discussion by others. The results as of early 2008 differ significantly from original intentions guiding the EU position between 2003 and 2008. Initial ambitions were, by far, not met.
The process had begun with the “Report from the Commission to the Council on the preparedness of Bosnia and Herzegovina to negotiate a Stabilization and Association Agreement with the European Union”, COM (2003) 692, 18 November 2003.1 The European Commission formally called for systemic reform of the policing structures in Bosnia and Herzegovina.
EUPM followed on to the United Nations International Police Task Force within UNMiB. The European Union Police Mission became operational 01 January 2003, with an initial mandate until the end of 2005. It’s mission was to seek sustainable policing arrangements2 under BiH ownership in accordance with best European and international practice. It was actively involved in the discussion on Police Reform. January 2004, EUPM presented a “Concept Paper on Restructuring Law Enforcement Agencies in BiH“3 and “developed a reform proposal that envisioned establishment of the position of police director, to be supervised by a state-level Ministry of Security, and creation of five police regions…”.4
05 July 2004, the High Representative issued a “Decision Establishing the Police Restructuring Commission”,5 (PRC) which also became known as the “Martens Commission”. The EUPM HoM was a member. 28 October 2004, the Chair of this Commission issued a 281 page document “Final Report on the Work of the Police Restructuring Commission of Bosnia and Herzegovina” in which he determined that “an acceptable level of professional consensus exists for proposing to the Council of Ministers and the High Representative a “single structure of policing under the overall political oversight of a ministry or ministries in the Council of Ministers”.”6
EUPM participated in further work, including “the establishment of the Police Steering Board, co-chaired by the EUPM and local authorities”.7 In February 2005, the PRC issued its “Final Report on the Work of the Police Restructuring Commission of Bosnia and Herzegovina8”. The Report starts with: “The Chair of the Bosnia and Herzegovina Police Restructuring Commission has determined an acceptable level of professional consensus exists for proposing to the Council of Ministers and the High Representative a “single structure of policing under the overall political oversight of a ministry or ministries in the Council of Ministers”.“
Adhering to the 12 directing principles of police restructuring, enumerated in the Decision of the High Representative [Bosnia and Herzegovina Official Gazette 36/04], including a policing service that is, inter alia, efficient and effective, financially sustainable, reflecting the ethnic distribution in Bosnia and Herzegovina, protected from improper political interference, and accountable to the law and the community, the report proposal foresaw “that the Institutions of Bosnia and Herzegovina will be vested with exclusive competency for all police matters, which includes legislative and budgetary competency. The Minister of Security of Bosnia and Herzegovina will have responsibility for overall political oversight of the single structure of policing in Bosnia and Herzegovina. The independent, national Police Inspectorate will monitor the effectiveness and efficiency of the single structure of policing. The State Investigation and Protection Agency (SIPA), the State Border Service (SBS), and the new Local Police Bodies will form the Police Service of Bosnia and Herzegovina. The Local Police Bodies will operate in Local Police Areas commanded by Local Police Commissioners. The Local Police Bodies will prevent, detect and investigate common crimes, and provide rapid intervention, traffic control and safety, crowd control and public order to the citizens of Bosnia and Herzegovina. Community policing will be a main feature of police work in the Local Police Bodies.”
EUPM’s mandate was evaluated in 2005 and refocussed with the beginning of 2006. It included “Support to the Police Reform Process”: “In accordance with the EUSR’s lead, actively support, advise and guide where appropriate, the implementation of police restructuring, as set out in the Agreement on Restructuring of Police Structures, endorsed by the RSNA on October 5th 2005, the Federation Parliament on October 12th 2005 and the BIH State Parliament on October 18th, 2005.”
Already with the first Six-Month-Report (SMR) under the refocussed mandate, the EUPM HoM characterized a number of developments that were to pose challenges on the work on EUPM in implementing the mandate on assisting Police Reform, inter alia including the start of negotiations for a Stabilisation and Association Agreement (SAA); the change of the Republika Srpska (RS) government to a SNSD-led coalition under Prime Minister Milorad DODIK; the progress towards reforming the constitution; and the challenge to the Directorate for the Implementation of Police Restructuring (DIPR) by the RS Prime Minister – including questioning the role of EUPM HoM within the Directorate.9
With its next SMR, covering the period between April and October 2006, it became clear that the challenges were not temporary, but part of a fundamental opposition against the initiated process: The HoM reported “the continuous obstruction and undermining of the October 2005 political agreement on police restructuring by the Republika Srpska (RS), including the withdrawal from active participation in the Directorate for the Implementation of Police Reform (DIPR)”10.
December 2006, the DIPR (co-chaired by the HoM EUPM, to be reminded) presented a “Proposal Plan for Implementation of BiH Police Structures Reform”11. This plan mapped out a structure based on the February 2005 PRC Report and the mentioned principles.
In its SMR for the period October 2006 to April 2007, the EUPM HoM described “ The failure of the authorities of Bosnia and Herzegovina to adopt the report of the Directorate for the Implementation of Police Restructuring (DIPR) which was presented in the beginning of 2007. Since February 2007, EUSR/OHR facilitated political negotiations which remained inconclusive to date, though a meeting held on 14 March came close to an agreement. On the other hand, RS government conclusions of 4 April and of the RS National Assembly of 11 April 2007 have again rejected the process.”
In its SMR for the period April 2007 to October 2007, EUPM HoM continues to note a lack of progress, stating that “Bosnia and Herzegovina was not able to initial and sign the Stabilisation and Association Agreement with the EU due to a lack of progress in key reforms, including on police restructuring.” He states that “The authorities of Bosnia and Herzegovina failed to adopt the report of the Directorate for the Implementation of Police Restructuring (DIPR) and the ‘Draft protocol on meeting the police reform requirements necessary for initialing a and signing a Stabilisation and Association Agreement’ proposed by the EUSR/HR. Political negotiations facilitated by the EUSR/HR resumed in September on the basis of the draft protocol with the aim to reach an agreement by 30 September, in view of the European Commission’s annual progress report. In their function as political party presidents of SBiH and SNSD, BiH Presidency Member, Dr Haris Silajdzic and RS Prime Minister Milorad Dodik unilaterally signed on 28 September an agreement which failed to meet the three EU principles for reform. On 09 October, HDZ BiH and HDZ 1990 put forward a new document, and on 11 October, convened a meeting of party leaders to discuss the document. This meeting failed to reach agreement.”
24 October 2007, the leaders of the political parties HDZBiH, HDZ1990, PDP, SNSD, SDA and SBiH signed the so-called “Mostar-Declaration on Police Reform”.12 The signatories agreed to undertake all necessary activities for implementation of the police reform in accordance with the principles of the European Union, and which are indispensable for continuing the process of association of Bosnia and Herzegovina with the European Union.
Leaders fully and unconditionally agreed with the content of the present Declaration and every of its particular point as indicated below, therefore including that the reform of the current police structures in Bosnia and Herzegovina shall be implemented in line with the following three principles of the European Commission: (1) All legislative and budgetary competencies for all police matters must be vested at the State level. (2) No political interference with operational policing. (3) Functional local police areas must be determined by technical policing criteria, where operational command is exercised at the local level. The second part of the declaration describes a general commitment, that includes the statement that the structure of the single police forces of Bosnia and Herzegovina shall be in line with the constitutional structure of the country.
Between the signing of the Mostar Declaration and the signing of the two Police Reform Laws that, finally, prepared the ground for signing the SAA, EUPM notes in its SMR for the period between October 2007 and April 2008: “The political atmosphere has been tense since last October. The High Representative announced a range of measures to improve the functionality of Bosnia and Herzegovina’s institutions, prompting strong reactions from the Republika Srpska. Despite the resulting tensions, on 28 October 2007 leaders of Bosnia and Herzegovina’s governing parties signed the Mostar Declaration agreeing to take necessary steps to implement police reform as a requirement to sign the Stabilisation and Associations Agreement. In November, political leaders agreed to an Action Plan for police reform, defining the necessary detail and legal solutions. The Council of Ministers subsequently adopted the Mostar Declaration and Action Plan. This brought Bosnia and Herzegovina back on track towards EU integration. The Stabilisation and Association Agreement was initialed on 4 December 2007 by the Enlargement Commissioner in Sarajevo. … In early February 2008, however, the decision of the leading Bosniak party to walk away from the Mostar Declaration and the Action Plan caused major difficulties. In parallel to this, the RS National Assembly adopted a resolution claiming the right of self- determination. The Steering Board of the Peace Implementation Council met at the end of February 2008 in Brussels and reacted strongly to these serious developments and decided to keep the Office of the High Representative in place until a set of five objectives and two conditions were met. With the adoption of the two police reform laws, prospects for the signature of the Stabilisation and Association Agreement increased, thereby significantly improving the chances to meet one of the two conditions. The second condition is a positive assessment of the situation in Bosnia and Herzegovina by the Peace Implementation Council.”
On the two Police Reform Laws, EUPM noted: “The most important event of the last six months with regard to EUPM’s objectives has been the agreement and adoption of the two police reform laws in line with the Mostar Declaration and the Action Plan. The Parliamentary Assembly of Bosnia and Herzegovina passed these laws in April 2008. At this stage, the two laws will not result in a comprehensive police reform encompassing the entities, cantons and Brcko District, as relations between the State and other levels are to be addressed after constitutional reform. … The laws will establish seven new bodies at state level to coordinate and support the two state level police agencies, i.e. the State Investigation and Protection Agency (SIPA) and Border Police (annex 1 for a more detailed assessment). However, there are important elements in the law, which allow EUPM to come to a cautiously optimistic assessment. First, the laws make reference to the three EU principles for police reform in Bosnia and Herzegovina. Second, there is a commitment to take further steps after constitutional reform. Third, the institutions established by the two laws could be “upgraded” in the future to play a more important role vis-à-vis entity, cantonal and Brcko District police. The slow progress of the police reform can be attributed to the generally tense political atmosphere that has prevailed in the last two years and significant disagreements among the political parties of the government coalition. Against this background it was not possible to achieve a more profound police reform at this time. However, the three elements highlighted above, indicate to EUPM that the process is heading in the right direction. In close coordination with the EUSR/HR, the Mission will from now on assist in implementing the laws together with the European Commission. The European Commission has foreseen to provide technical assistance and EUPM will be able to provide police experts.“
By December 2011, the cautious optimism expressed by EUPM at that time had to fade away slowly over the following years: EUPM continued to report an ever more deteriorating political climate in Bosnia & Herzegovina. Agencies that had to emerge from the two Police Reform Laws appeared to be kept in slow-motion, for example took it until 2010 to have the Director and the two Deputy Directors of the Directorate for Police Coordination appointed. Likewise, the establishment of an Agency for Anti-Corruption is in its early infancy. Any political activity related to a larger constitutional reform, died with the “Butmir Conference”, which appears to be the last significant effort known to date.
Five years of Police Reform process began with an objective to establish a “single structure of policing under the overall political oversight of a ministry or ministries in the Council of Ministers”. They ended with no changes within the given setup, but added seven new bodies at state level to coordinate and support the two state level police agencies, i.e. the State Investigation and Protection Agency (SIPA) and Border Police.
In 2010, the then Prime Minister of the Republica Srpska Milorad Dodik (now it’s President) stated: “Finally, it is regrettable that the assessment mischaracterizes the actions of the RS in defending the rights it is guaranteed by the Dayton Agreement, including the right to protect its vital interests, as challenges to the international community. The time has come for the international community to recognize that its relentless efforts to impose an overly centralized structure on Bosnia-Herzegovina will not succeed and to accept that a decentralized structure, but one fully capable of qualifying it for EU entry, is the best guarantee of prosperity and stability in this region.”13
1 http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=COM:2003:0692:FIN:EN:PDF – Also Attachment 1
2 Concept of Operations, 09.04.2002, doc 7766/02 – RESTREINT UE-: “La MPUE, soutenue par les programmes de développement institutionnel de la Commission, devrait viser, dans le cadre plus large de l’action en faveur de l’État de droit et conformément aux objectifs généraux de l’annexe 11 de l’accord de Dayton, à établir des dispositifs de police durables sous gestion de la Bosnie-Herzégovine, conformément aux meilleures pratiques européennes et internationales et, ce faisant, à améliorer le niveau de la police en Bosnie-Herzégovine.
La MPUE devrait avoir atteint ses objectifs d’ici la fin de 2005.”
3 Attachment 2
4 International Crisis Group – BOSNIA’S STALLED POLICE REFORM: NO PROGRESS, NO EU – Europe Report N°164 – 6 September 2005 – pg 7 – Also attachment 3
6 Attachment 5
7 Concept of Operations (CONOPS) for the Follow-on Mission to EUPM in Bosnia and Herzegovina; 04.11.2005, 14035/05, pg. 3
8 Attachment 6
9 Six-Monthly Review Report of the Police Head of Mission of the European Union Police Mission in Bosnia and Herzegovina; 24.04.2006
10 Six-Monthly Review Report of the Police Head of Mission of the European Union Police Mission in Bosnia and Herzegovina; 30.10.2006
11 Attachment 7
12 http://www.eusrbih.org/policy-docs/?cid=2109,1,1 – Also attachment 8
13 “Bad Intel – Foreign Policy – 12 Feb 2010 – http-::www.foreignpolicy.com:articles:2010:02:12:bad_intel – Also attachment 9
Chapter Three – On Institutionalized Cooperation
The “Concept of Operation (CONOPS) for the Follow-on Mission to EUPM in Bosnia and Herzegovina” for the period of 2006 and 20071 directed EUPM to (1) actively support, advise and guide where appropriate, the implementation of police restructuring; to (2) improve, through proactive mentoring, monitoring and inspecting, police managerial and operational capacities, especially at the State level, including relations with other law-enforcement agencies; to (3) improve, through proactive mentoring, monitoring and inspecting, police managerial, operational and coordination capacities, especially at the State level to enhance BiH’s capacity to fight organised crime in accordance with existing international, and in particular regional, commitments and obligations; and (4) in close coordination with the EUSR, monitor the exercise of political control over the police and address inappropriate political interference in the operational management of the police.
On occasion of the renewal of the mandate for the period 2008 and 2009, the objectives given to EUPM with the CONOPS changed significantly2, both through evaluation of given objectives and adding several new objectives. Whilst the support to police restructuring was rephrased towards a more supporting role, the objective to assist in the fight against organized crime remained the same. New objectives formed the framework of EUPM’s increased participation in, and support to, future processes under the EU enlargement policy that were envisaged towards and beyond the end of EUPMs mandate.
The objectives given to EUPM for the period of 2010 and 20113 directed the Mission to ensuring greater success in the fight against organised crime and corruption, strengthening the capacities of SIPA and other State level institutions, including sustainable coordination, cooperation and accountability mechanisms, as well as further enhancing police-prosecutor relations, thereby contributing to an improved functioning of the criminal justice system.
Finally, the CONOPS for EUPM’s transitional period throughout the first half of 20124 emphasized the objectives to (1) provide strategic advice to the BiH LEAs and political authorities on combating organised crime and corruption; to (2) promote and facilitate coordination and cooperation mechanisms vertically as well as horizontally between relevant LEAs, with a particular focus on State level agencies; and to (3) ensure a successful hand over between EUPM and the EUSR RoL/Police Section and contributing to the coordination of EU and EU Member States’ activities and programmes in the field of Rule of Law.
All mandates for EUPM between 2006 and 2012 increasingly took the general assistance to law enforcement that had characterized the mandate between 2003 and 2005 to more specified levels. The developing objectives directed the Mission towards more and more specific assistance in the fight against organised and other serious crime. Taking the situation of post-conflict development in Bosnia and Herzegovina into account, EUPM had to focus on both strengthening the individual capacities of law enforcement and the criminal justice system and to simultaneously work on strengthening coordination, cooperation and communication between agencies inside BiH, and between BiH and the outside world. For an EU crisis management mission tasked with strengthening the Rule of Law in a country of the Western Balkans, the prospect of EU accession of the host country formed a long term focus on cooperation with EU Agencies, such as EUROPOL, EUROJUST and FRONTEX, and on supporting bilateral cooperation between law enforcement of European Union Member States and Bosnia and Herzegovina.
With Bosnia and Herzegovina and the European Union signing the Stabilization and Association Agreement (SAA) in spring 2008, EUPM found itself in a recalibration in relation to its mandate: The participation of EUPM in the police restructuring process, including a leading role,5 transformed itself into an assistance to, and monitoring of the implementation of the results, notably the establishment of “seven new bodies at state level to coordinate and support the two state level police agencies”6. Throughout the remainder of EUPM’s mandate for the period 2008 and 2009, but also for the following mandate during 2010 and 2011, EUPM’s activities moved substantially: On the one hand, EUPM monitored and assisted the implementation of agreed results of the police restructuring process, whilst on the other hand active and renewed commitment was directed to a systematic deepening of cooperation, coordination and communication between law enforcement and criminal justice on organized and other serious crime, and corruption. Further efforts were directed into the support of police accountability.
Already early in this recalibration throughout 2008 EUPM noted delays in the implementation of agreed results of the police restructuring,7 and joined others by continuing to do so for the years to come8. At the same time, EUPM continued to report operational results of law enforcement in the fight against organized crime, through State, entity, cantonal and Brcko District level law enforcement. The Mission itself increased efforts to establish domestic ownership.
In EUPM’s seventh SMR9, HoM noted little progress in BiH fulfilling European partnership priorities and a negative political atmosphere, not conducive for progress at State level with regard to the support to the fight against organized crime.
However, HoM reported a track record of achievements continuing to emerge in the fight against serious and organized crime and corruption. State level agencies and police services on entity and cantonal levels, and Brcko District, agreed with EUPM that there is a need to jointly foster further development of communication, coordination and cooperation among themselves and with the other components of the criminal justice system, and to strengthen joint capacities and capabilities.
Throughout late 2008, EUPM undertook a comprehensive outreach, noting the assessment of state of play as presented by Heads of law enforcement and criminal justice on all levels, Minister of Security and entity Ministers of Interior. It became obvious how much the politicization of the police reform process had adversely affected communication on operational and strategic cooperation between law enforcement agencies10. In close communication with international partners, especially the US Department of Justice’s ICITAP program, EUPM analyzed this in an effort of renewed commitment to assisting in the development of capacities in the fight against organized crime.
EUPM suggested to develop a set of principal objectives, a vision that would map out what domestic actors within law enforcement, criminal justice, Ministers, and EUPM would assess as being achievable, within the given agreed legal framework of policing structures that had set the stage for the signing of the SAA.11 EUPM argued that the complex organizational reality within BiH’s law enforcement required redoubling efforts tackling the challenges, increasing sustainable success in the fight against organized crime. Therefore, systematic, effective and efficient cooperation, communication and coordination were identified as critical success factors for the fight of organized and other international crime. EUPM called on all actors to contribute to this goal, to the benefit of each.
EUPM’s mandate directed its efforts “especially at the State level”. EUPM argued that the inclusion of all administrative levels underneath, including entities, cantons, and Brcko District constitutes a critical success factor for achieving its mandate: State level law enforcement can neither strive nor contribute without a strong commitment of all administrative levels of BiH to contribute. After a thorough consultation process involving law enforcement and ministerial actors on all levels of BiH, and the State Prosecutor, HoM could present a set of six objectives, which were agreed for further strategic work, between EUPM and all interlocutors.12 This Joint Vision remained valid during the transformation of EUPM into the third mandate, for 2010 and 2011, and therefore formed the basis for the entire Mission Implementation Plan13 of EUPM between late 2008 and mid 2012.
On basis of this agreed vision, EUPM devised, in cooperation with all domestic partners including Ministries, its own Strategic Objectives on assisting domestic agencies, and kept partners permanently appraised on progress in implementation14. EUPM advised domestic interlocutors to follow the same methodology and to identify those strategic objectives that would direct their respective institution’s development towards the jointly agreed vision. With significant energy, EUPM advised on the benefits for domestic organizations to place their mid- and long term commitments on the basis of own visions and strategic plans, and continued to do so until the end of its mandate.15 Throughout the following years, progress on the level of individual agencies could be noted, and on cooperation between agencies on tactical and operational levels. However, the non-conducive state of political dialogue in BiH as a whole presented huge challenges to systematic, strategic, and institutionalized development contributing to joint aspects of law enforcement.16
Both the approach to systematically strengthen capacities on individual organizational level and to strengthen the overall, or joint, capacity fighting organized crime and corruption had followed one structured and documented Mission Implementation Plan: Based on the Joint Vision and the Strategic Objectives that were devised from the Joint Vision, constituting the fundamental framework of EUPM’s assistance, a next step identified the main processes that were identified as crucial in achieving progress. On this third level the desired end state for each process, defining the end of EUPM assistance, was documented. This allowed for later benchmarking. Both at the beginning of 2009,17 and at the end of of 200918 for the period 2010/2011, this step in identifying a coherent EUPM assistance was meticulously discussed with domestic actors. Attention should be given to one detail of the Business Plan for 2010/2011: It includes a needs assessment for each process. In other words, the Business Plan includes a description of gaps in the capacity of the system of law enforcement in fighting organized crime. Both the identification of this need, and the documentation in the Business Plan, included full inclusion of all domestic actors, including the Minister of Security and the entity Ministers of Interior in the Federation of Bosnia and Herzegovina and the Republica Srpska. Wishing to stay neutral in a documented assessment of gaps as far as individual agencies were concerned19, EUPM kept a needs assessment on a level that described the overall capacity of the system, including its deficiencies. By this, EUPM managed to find appreciation and support for this Business Plan by all relevant actors at all levels.
As a fourth step, EUPM described and documented every single support action by all its actors that were undertaken as a contribution to processes as described in the Mission Implementation- (MIP) or Business Plan (BP)20. Thus, EUPM was striving for directing its decentralized resources, deployed into Headquarters and Field Offices, into a coherent support to seventeen agencies in the area of law enforcement, and several interlocutors in the criminal justice system, including the High Judicial and Prosecutorial Council and the State Prosecutor’s Office. In addition, the methodology used an IT-based distributed reporting system that enabled EUPM to monitor development, and to automatically generate progress reports that were regularly received by the Civilian Operation Commander21.
Within EUPM’s twin-track approach, HoM decided to strategically focus his contribution to the overall assistance to the common undertaking strengthening the combined, or joint capacities of the entire system. EUPM conducted proactive outreach to important bilateral contributors to BiH security and Rule of Law institutions. EUPM continued to participate in coordination mechanisms, on operational and strategic level, with the Office of the High Representative (OHR), and especially intensified the already close cooperation between EUPM, the EUSR, and the EU Delegation. On the other hand, coordination between EUPM and EUFOR gradually moved from operational to strategic levels, following the increased capacity of domestic law enforcement, demonstrated on operational22 and crime fighting level.
In late summer 2008, the US ICITAP had embarked on actively initiating and supporting informal meetings between a group of Heads of law enforcement agencies, and the State Prosecutor. Whilst such meetings may appear to be a fundamental layer of practical cooperation in most jurisdictions23, they were not a reality in BiH at that time. Rather, participants would later acknowledge that they were not even having such talks beforehand, beyond a case-by-case level. EUPM supported this activity, led on HoM level, from autumn 2008 on. Between 2009 and 2012 these coordination meetings were mentored and supported by ICITAP and EUPM in a team effort.
In EUPM’s eighth Six-Month-Report24, HoM noted: “State level agencies and police services on entity, cantonal levels and Brcko District, including the State Prosecutor continued to communicate, coordinate and cooperate at strategic level on a monthly basis and institutional arrangements are being developed at technical level. However, synchronization at the political level remained near impossible apart from issues related to European partnership requirements such as changes and harmonisation of criminal codes. EUPM’s support, joint with international community and bi-lateral partners, is yielding results in deepening a more systematic interaction between law enforcement agencies, yet this was insufficiently mirrored at the ministerial level where these efforts have been met at times with suspicion and even open obstruction.”
A positive assessment was noted in the following, ninth SMR25, with HoM reporting: “The Mission successfully promoted increased cohesion among top police officials in regular meetings, including a joint study visit to Germany. These efforts are starting to be underpinned by enhanced inter-ministerial cooperation. At the technical police and prosecutor level, the Mission has no indication for a change of constructive attitudes. The progress of Bosnia and Herzegovina in fulfilling the requirements of the visa liberalization road map indicated that there is domestic ability and willingness for legislative and regulatory change in line with clear EU requirements.”
The reporting period covered with the tenth SMR26, ending with October 2010, marked the beginning of a slowing down in that development, leading to more concern in later periods. Whilst HoM continued to note operational success in cases related to the fight against organized and other serious crime, and increasing cohesion amongst top police officials, he could not confirm further and enhanced inter-ministerial cooperation, as he had done in the previous report. Rather, HoM noted no systematic inter-ministerial cooperation, limitation of cooperation to individual cases, and difficulties in institutionalized cooperation and coordination on technical level.
The decision of the Council of the EU in November 2010 to lift the visa requirement for short-term stays in the Schengen area for citizens of Bosnia and Herzegovina holding a biometric passport was based on the achievements recorded in the fight against organized crime and corruption. Arrests in December 2010 in Una-Sana Canton removed the leadership of the cantonal police, and an earlier operation in September 2010 led to the arrest of significant numbers of Republika Srspka and Border Police officers. EUPM noted: “Police and prosecutors continue to show determination to fight complex and challenging forms of crime and corruption, although concrete improvements are needed particularly in regards to police/prosecutor communication. Three factors were conductive these achievements: (1) First, the visa dialogue served as a catalyst. (2) Second, the nascent regular operational cooperation of senior law enforcement officials yielded results, as cases of blatant crime and corruption could be tackled successfully because, (3) third, the overall capability has increased logically as a result of domestic efforts and EU and international assistance over the last decade and could be made operational to lead more complex investigations, including throughout the country and with neighboring countries.” EUPM pushed LEAs not to rest on these successes, since neither the nascent operational cooperation had reached a satisfactory degree of sustainability nor could it be expected that organized crime would not adapt. Given that assumption, EUPM noted that success may only continue if law enforcement continues to improve.
In its eleventh SMR27, EUPM continued to note the regular meetings between Police Directors and the State Prosecutor, but stressed the necessary “strong support of EUPM and the US International Criminal Investigative Training Assistance Programme (ICITAP)”. The mission hosted a study visit to the German Federal Law Enforcement institutions in Berlin, in cooperation with ICITAP, which hosted a study trip to the US. EUPM prepared a further introduction to European law enforcement cooperation structures with EUROPOL, EUROJUST, FRONTEX, OLAF and the European Commission, planning this for May 2011.
In autumn 2011, with its twelfth SMR28, EUPM indicated that the political gridlock of the past period was reflected by slow progress in the law enforcement and criminal justice sector. The controversy about State level versus entity levels competences in the areas of law enforcement and criminal justice continued. Despite stable operational cooperation, no progress could be registered in the further institutionalisation of coordination mechanisms between State, entity, Brcko District and cantons. “Cooperation cannot move beyond the agreements made as a result of the police reform and the visa dialogue.”
The efforts of EUPM to foster institutionalized cooperation, with a wide range of instruments based on an open partnership approach, are well documented. They include, inter alia, (1) comprehensive institutional support to newly founded agencies, such as the Directorate for the Coordination of Police Agencies; (2) assistance to agencies and institutions of law enforcement and criminal justice on all levels; (3) participation in support activities of the larger International community in preserving and strengthening State level security and rule of law institutions; (4) participation in fostering regular coordination; (5) frequent outreach of HoM to Heads of institutions and Ministers on all levels; (6) systematic use of media; and (7) sponsoring of incentives for the senior management within security and rule of law, through convening seminars, organization of study trips under DHoM and HoM mentorship and participation in respective activities of international partners, notably from the US, and within the EU family29.
In sum, EUPM could report considerable progress, throughout 2009, 2010 and 2011, in further strengthening the capacity of individual agencies and institutions. At the same time, the support to informal coordination mechanisms was also yielding significant results, but confined to an operational level. EUPM reports do document a long and widely recognized series of joint operational activities of law enforcement and prosecutors. EUPM could use these successes for strong public messages that played in favor of law enforcement, calling for further development into the right direction, and towards institutionalization of such efforts, including through coordination of policy and strategic activities on the level of involved Ministries.
Thus, from the end of 2009 on, EUPM began to advise national partners to increase the cooperation, by making it more systematic and strategic, referencing to best practice within Member States of the EU. Though this was partly leading to the establishment of working groups within the informal coordination meetings, it also led to an increasing suspicion within some political quarters, notably in the Republic Srpska, that this would be an hidden re-entry into police reform issues30. Ministerial/political positions on the call for institutionalization31 became, over time, increasingly antagonistic. This reflected the worsening political dialogue and increasing antagonization of public political statements on the role of State level institutions, and moreover, on the role of the State itself32.
Subsequently the Strategic Review of the EUPM, conducted by the EEAS’ Crisis Management Planning Directorate in early 201133 both identified the satisfactory progress made towards sustainable development on the level of individual institutions, and to assess the development in the area of development of joint capacities as not sustainable yet.
The call for institutionalization of cooperation that was promoted by EUPM was inconclusively and insufficiently responded to on political level. Openly antagonistic political positions on fundamental issues slowed down, partly even paralyzed necessary development, which can be exemplified within the given EUPM documentation34.
The continued call on Bosnia and Herzegovina to find domestic solutions that enable its complex administrative structure to effectively and efficiently tackle serious and organized crime was prominently voiced in the Progress Report of the European Commission35 in October 2011:
“One year after the general elections of 3 October 2010, the process of establishing executive and legislative authorities remains to be completed with the establishment of a State-level Government. The failure to reach a political agreement on the formation of authorities has hampered Bosnia and Herzegovina’s progress on much needed reforms, … .
A shared vision by the political representatives on the overall direction and future of the country and its institutional setup is lacking. The EU accession process requires political will and functional institutions at all levels with an effective coordination mechanism on EU matters. …
Overall, Bosnia and Herzegovina made some progress in the field of police, albeit uneven. Institutions created by the police reform laws were established at a slow pace. The lack of institutionalised cooperation between all law enforcement agencies and the limited strategic guidance remain challenges to achieve more efficient policing. …
There was little progress in fighting organised crime. Organised crime networks continue to operate throughout Bosnia and Herzegovina and have a negative impact on political structures and the economy. A number of large-scale operations were nevertheless successfully conducted, thanks to the cooperation amongst different law enforcement agencies. Implementation of the strategy for the fight against organised crime continued. However, lack of adequate resources limits its effectiveness.”
On occasion of the presentation of EUPM’s last six month report before entering the 2012 transition period, HoM noted in his oral presentation36 to the Political and Security Committee, 04 October 2011:
“The political gridlock resulted in a visible deterioration of the strategic cooperation. EUPM and international community partners constantly recalled the need for it, including to Ministers. We stressed the need to utilize the informal, albeit regular, cooperation mechanisms also for the development of operational strategies and policies to increase BiH’s capacity to fight organized crime and corruption. Therefore, we presented the EU policy cycle for organized and serious international crime as a model. … Overall, and too easily, law enforcement and criminal justice cooperation can become hostage of politics. The key to sustainability remains in the hands of the political decision-makers. They have to allow for a qualitative step towards more institutionalization of the ad-hoc cooperation. The EU provides a model on how institutionalization in this sensitive area can grow. I will continue to encourage BiH partners to look how EU member states jointly organise the strategic aspects of the fight against organized crime and corruption. … We continue, in close cooperation with the EU Delegation and with international partners, and in consultation with the EUSR, to work on finding solutions how to assist in this complex and long-term process of institutional development. … The upcoming transition of EUPM is part of a medium-term paradigm shift. Further progress would need to be accompanied by a re-calibrated approach, fostering the introduction of EU policy tools in the fight against organized crime and corruption. This will help BiH to meet the complex technical and policy needs coming from European integration. EUPM has laid groundwork for this. In the field of capacity building and knowledge transfer the European Commission is taking a lead through several IPA-projects which have started or are about to start. The fragility of the overall system remains painfully exposed. EU instruments need to have a maximum strength to shield the system from attack, and erosion. If the state level was to be left to its own devices, roll back and decrease of joint activities is likely.”
Between 2010 and May 2012, thirteen informal coordination meetings have been conducted, on basis of a co-chairing between the Directorate for Police Coordination and a rotating host. EUPM and ICITAP have made assistance to this mechanism a priority, and have stressed the need for a more institutionalised setup, including the need of unequivocal support by relevant Ministries. The amount of energy invested in this, including through the conduct of high-profile study visits to Europe and the United States, and through instrumenting all available diplomatic and political support in stressing the importance of systematic coordination, is more than considerable. Beginning in 2010, the position of the Director of the Police of the Republica Srpska and the RS Minister of Interior towards these meetings have become increasingly critical. Republika Srpska’s participation in the group was discontinued with the successful conclusion of the visa dialogue at the end of 2010. The perspective of visa liberalization and the conditions set-up in the road map, coerced Republika Srpska into cooperation as the failure to deliver visa liberalization for RS citizens could have clearly been attributed to the behaviour of the RS authorities. In turn, cooperation withered away once the prize was gained. This explains, why despite continous and labor-intense outreach on the level of Principals, the RS Director of Police has failed to attend these meetings as of 2011 and until today (May 2012). It has become obvious that the reasons for this rest with well-known political differences within the political system in Bosnia and Herzegovina, and the position of the leading RS political parties to insist on a maximum autonomy. The RS insists on the principle of maximum representation of the BiH level through the constituting entities, thus minimising the role, at times even attempting to abolish State level institutions, including in the field of the Rule of Law.
Any further progress as outlined in the European Commission Progress Report as of 2011 will therefore depend on the ability of the political system in Bosnia and Herzegovina to conclude on a joint way forward. The necessary political attraction can only come from an integration of BiH into transatlantic and European structures. Therefore, further domestic efforts on open issues that are documented in this paper, both on possibilities of the system to restructure its costly and inefficient structure of law enforcement, and to increase systematic cooperation inside the system, have to be placed into the process of EU enlargement, and regular police and judicial cooperation between EU law enforcement agencies and BiH agencies.
1 Document st14035/05 RESTREINT UE, 04 November 2005
2 Document st13592/07 RESTREINT UE, 08 October 2007
3 Document st15419/11 RESTREINT UE, 14 July 2009
4 Document st12069/09 RESTREINT UE, 12 October 2011
5 Inter alia, through co-chairing the Directorate for the Implementation of Police Restructuring (DIPR)
6 As noted in EUPM SMR as of 14.05.2008
7 EUPM six-monthly report as of 30 September 2008: HoM notes implementation behind schedule, e.g. on pg. 3.
8 As an example for many, EUPM kept reminding on the urgent need to comprehensively fighing corruption, through its media campaigns (see for many: http://www.eupm.org/Detail.aspx?ID=3859&TabID=9, attachment 1) until the end of the Mission itself, and continued to join in open criticism voiced by others, related to the unsatisfactory development of relevant capacities, such as the Agency for Anti-Corruption. See attachment 2, as an example: “Bosnia Daily No 2732 as of 19 March 2012, pg. 4: “TI and Open Society Fund send open letter to BiH Parliament and Council of Ministers – Corruption undermines nation building”; and attachment 3, an article in Balkan Insight as of 20.03.2012 in criticism voiced by a DG Enlargement representative.
9 7th SMR, distributed to EU MS 25 March 2009
10 As one interlocutor put it: “It is good that the times of Police Reform are behind us, so that we can talk again.”
11 Deliberately with no specified timeframe, especially because so many actors were involved and not accurate estimation would have been realistic anyway.
12 Attachment 4: Version valid for 2009
13 Attachment 5: Version valid for 2010, 2011, and the transitional period until mid 2012
14 Atachment 6 documents EUPM’s strategic objectives for 2009, attachment 7 documents the EUPM strategic objectives for 2010 and 2011. Both are founded on the respective joint vision.
15 HoM’s personal and EUPM’s official archive document a large number of related efforts, including through the conduct of high-level study trips, presentations on occasion of law enforcement coordination meetings, and through individual outreach.
16 Aspects that would require a systematic cooperation and coordination of several or all seventeen agencies in the area of law enforcement, and the criminal justice system, beyond an operational, or day-today- level.
17 Attachment 8: EUPM Business Plan for the period of 2009
18 Attachment 9: EUPM Business Plan for the period 2010/2011
19 Since it would have been confirmed in privacy only, if at all and vehemently disputed in public statements.
20 As it had to be re-named due to a harmonization effort of the CPCC over all civilian CSDP Missions in late 2009.
21 A full description will be subject to different writing, within EUPMs legacy documentation.
22 EUPM regularly reported about increased and demonstrated capacity of the BiH law enforcement to tackle highest challenges of operational nature, such as the handling, for example, of the Srebrenica annual commemoration event, large scale demonstrations, and situations of potential public disorder.
23 And especially within those that are comprised of multiple layers of agencies, like in federally structured systems.
24 SMR as of 02 October 2009 – RESTREINT UE
25 SMR as of 26 March 2010 – RESTREINT UE
26 SMR as of 01 October 2010 – RESTREINT UE
27 SMR as of 31 March 2011 – RESTREINT UE
28 SMR as of 30 September 2011 – RESTREINT UE
29 The Mission meticulously synchronized with the programme planning under the Instrument for Pre-Accession (IPA), and encouraged, assisted to, and participated in seminars, workshops and other activities under TAIEX. Close cooperation with ILECU projects and a regular participation in activities under DCAF’s regional border strengthening activities were a permanent reality on all levels of the Mission.
30 The open and frank conversations, held in a very friendly and cordial atmosphere, between HoM and Ministers, on State and entity level, are well documented. They include individual outreach, regular consulting, participation of Ministers in coordination meetings, and events organized by EUPM. As one prominent example, HoM facilitated an open exchange of views between Minister for Security and entity Ministers of Interior with senior representatives of DG Enlargement and the Head of the EU Delegation, during a dinner at his residence, 2010.
31 In which EUPM was strongly supported within the EU family, within Services of the EEAS and the European Commission, and by international partners
32 Attachment 10 – Media transcript of an interview of RS President Dodik to RTRS, in which he is quoted as saying “BiH is not a state, but a state union that should provide services to its parts,”, with which he reiterates a statement that had been made on numerous occasions, and which is disputed in other political groups in BiH, and within the International Community.
For a more comprehensive narrative and analysis of underlying, all too often antagonistic political forces, see respective political analysis within EUPM’s legacy documents.
33 ARES (2011) 400825, RESTREINT UE
34 As prominent examples, EUPM’s assessments on the shortfalls related to systematic comprehensive sharing and assessment of intelligence in BiH and the shortfalls of operational contingency planning for situations that require the immediate and prepared response of several agencies, on occasion the attack on the police station in Bugojno in 2010 and the attack on the US Embassy in Sarajevo in 2011.
35 Attachment 11
36 Entire talking points available on request
Chapter Four – On Accountability
“… operational independence does not mean being above the rules that apply to all of us.”
(Vijay Nambiar, Chef de Cabinet of the United Nations Secretary General; Letter to all staff 23 July 2010, on allegations that the SG would inflict on the operational independence of the United Nations Office for Internal Oversight (OIOS), as indicated in a letter to the SG by the outgoing Under Secretary General for OIOS, Inga-Britt Ahlenius, 14 July 2010.)
“14. The police shall enjoy sufficient operational independence from other state bodies in carrying out its given police tasks, for which it should be fully accountable.
59. The police shall be accountable to the state, the citizens and their representatives. They shall be subject to efficient external control.
60. State control of the police shall be divided between the legislative, the executive and the judicial powers.”
(The European Code of Police Ethics, Recommendation Rec(2001)10, Council of Europe, 19 September 20011)
The support to creating accountable policing in Bosnia and Herzegovina has been front and center for all assistance by the international community under the Dayton Peace Agreement2. Within EUPM’s fundamental documents, the term “accountability” itself was used for the first time in 2005. Whilst EUPM’s Operational Plan for 2006 and 2007 already uses the term on task level, the CONOPS for 2006 and 2007 is using this term3 only within the paragraph describing the political objectives of the EU4. Essentially, the EU described a target condition for the police within the aspirations of that time, that is, within the context of police reform.
The CONOPS for the period 2008 and 20095 continues to use the term in the paragraph describing political objectives, however, in a refined phrasing, taking the then emerging results of the Police Reform process into account: “In the medium term, it is to set BiH irreversibly on track for EU membership within the Stabilisation and Association process. To achieve this objective, strengthening the rule of law and the development of an effective, independent and accountable6 police service (as identified by the Directorate for the Implementation of Police Restructuring) are crucial.” For the first time since 2003 the term is also used within the context of EUPM’s mandate. The three tasks that were identified already in the OPLAN for the previous period were now lifted on CONOPS level: (1) “Supporting the Police Restructuring process and reform efforts”; (2) “Assistance in the Fight against Organised Crime”; and (3) “Support to the local police accountability”.
Neither the CONOPS for 2008 and 2009 nor any other fundamental document did define, or explain, the term “accountability”. Elaborating on the context in which the term was understood, the CONOPS stated that “substantial progress has been made to reach acceptable standards in terms of police internal and external control, mainly through the establishment of Professional Standards Units, Internal Control Units, Public Complaint Bureaux and Independent Selection and Review Boards. Particularly against the backdrop of an un-restructured policing system, there is still a need for support and encouragement in designing and implementing sustainable control, inspection and accountability procedures and mechanisms at the various levels of the fragmented police system.” Subsequently, EUPM was tasked “to conduct inspections in order to identify systemic deficiencies in relation to inspection and accountability procedures and propose solutions to the BiH authorities”.
The CONOPS for 2010 and 20117 moved the political objective to achieve accountable policing into the section describing short-term objectives. Furthermore, in it’s Mission Statement, this CONOPS moved work on accountability into “residual capacities” of the EUPM: “As part of the broader rule of law approach in BiH and in the region, EUPM, while retaining residual capacities in the fields of police reform and accountability, will primarily support BiH relevant Law Enforcement Agencies in the fight against organised crime and corruption, notably focusing on State level Law Enforcement Agencies, on enhancement of the interaction between police and prosecutor and on regional and international cooperation.” Within a separate tasks section on “accountability”, EUPM was essentially tasked to conduct “inspections in order to identify systemic deficiencies in relation to inspection and accountability procedures and propose solutions to BiH authorities”.
From the perspective of the above, one could raise the question whether towards the period 2010 onwards there existed an understanding of a positive development in relation to accountable policing, allowing for even more focussing on aspects of assistance in the fight against organised crime and corruption.
In January 2009, EUPM dedicated an edition of its own “Mission Magazine” to the topic accountability8. Mission Magazine 56 pointed to EUPM’s understanding the term and general understanding of police accountability as being split between (1) an internal dimension – the conduct of police officers, and an (2) external dimension – “the performance of the police service toward its citizens, ideally, the citizens would be the ones to engage in the determination of said targets and the performance assessment of their police service9”.
EUPM’s functional understanding as of 2009 (and before) is confirmed within the United Nations Office On Drugs And Crime (UNODC) 2011 “Handbook on police accountability, oversight and integrity”10, where one also finds a definition of the term itself: “…accountability is defined as a system of internal and external checks and balances aimed at ensuring that police carry out their duties properly and are held responsible if they fail to do so. Such a system is meant to uphold police integrity and deter misconduct and to restore or enhance public confidence in policing. Police integrity refers to normative and other safeguards that keep police from misusing their powers and abusing their rights and privileges.”
Following this distinction into internal and external dimensions, EUPM’s activities can be grouped into two lines of action: (1) EUPM conducted a greater number of inspections on various issues, shared the results with domestic counterparts, and monitored their implementation. (2) EUPM invested a very high amount of work into the assistance on legal and regulatory matters related to law enforcement on all administrative levels that form the framework of any police accountability, both internal and external. This legal and regulatory work of EUPM existed already during the early years of EUPM, and continued to do so until its end.
EUPM’s assistance on strengthening the internal dimension of accountability of the police was yielding results, including by way of conducting inspections. Domestic law enforcement was increasingly becoming able to decisively tackle own affection by crime and corruption11. However, towards the end of EUPM’s life significant challenges surfaced in the realm of legal mechanisms that ensure the external dimension of accountability of police in a larger system of governance, and towards citizens. The visible face of these challenges are political discussions attempting to change an accountability system that was established by the International Community before 2002. More underneath the visible discussion remains the long term need to further develop and deepen a fundamental democratic system of values, on which any legal framework rests.
EUPM’s early work on legal frameworks happened within the larger context related to the international community’s engagement “post Dayton”, notably the role of the OHR and the United Nations International Police Task Force (IPTF). EUPM followed on at a time when, under the mandate of a strong OHR (reinforced with the arrival of Lord Paddy Ashdown in 2002), the General Framework Agreement for Peace (GFAP) was being followed and the reform agenda was progressing with a high amount of energy on the side of the International Community. All this happened in the complex domestic political reality of Bosnia and Herzegovina.
Preventing political interference in operational police work has been one of the major principles strictly defended by EUPM, following on to IPTF that had worked on this principle before: The reality of a previously communist policing system and culture, already in transition but then affected by war, forced the International Community into decisive and coercive steps. Downsizing of police forces from estimated 80.000 post-war to approximately 17.000 by 2002, sanitising ranks (known as the de-certification process) and establishing a legal framework that shielded the Police from political influence were the bold tasks of those days. In this context, the changes within the legal framework effectively turned the system upside down in relation to pre-war command&control structures: Compliance with a new legal framework was made a pre-condition for certifying police agencies.
In the Federation of BiH, Laws on Internal Affairs (LIA) regulate the institutional issues related to status and functioning of the Ministries of Interiors and Administration of Police as well as their institutional competencies and authorities of the Ministers and Director of Police/Police Commissioners (DoP/PC). Therefore, LIA exist, and were developed, on entity and cantonal level. Together with “Laws on Police Officials” (LoPO) they establish the governance context for law enforcement. The LIA also include provisions as per cooperation with other institutions and other administrative matters i.e staffing issues, by-laws etc. and prescribe in detail the selection and appointment procedure of the Director of Police/Police Commissioner.12
The Republica Srpska authorities adopted a draft LIA in 200313, which kept the provisions related to Independent Selection and Review Boards (ISRB), which were included in the previous LIA from 1998.
In Brcko District exists a “Law on Police of Brcko District”, addressing the same topical issues as LIA do on entity and cantonal level, but with specific reference to the specific situation in the District, namely that the Chief of the Brcko District Police answers directly to the Mayor of Brcko District. A LoPO, identical to those in other BiH jurisdictions, exists too.
On State level, the legal framework for police is mainly characterised by laws that establish the respective law enforcement agencies (e.g. Law on Border Police, Law on State Investigation and Protection Agency etc.), and one Law on Police Officials (LoPO) for all agencies. Aspects of specific agencies that would, on entity and cantonal level, be regulated in LIA, can therefore be found within the laws establishing the individual State level agency. Aspects of the Ministry of Security are regulated in general laws, unlike on cantonal and entity level, where the LIA cover these aspects too.
Following the post-Dayton development, including the establishment of State level institutions only at a later stage14, the development of the legal and regulatory framework for the police therefore happened in sequences, with the development on entity and cantonal level being the first, and oldest.
As already indicated before, the concept of Police Commissioners (PC) and Directors of Police (DoP) independence from Ministers of Interior (MoI) and their selection by Independent Boards (ISRB) was new for the BiH policing system and externally imposed and implemented by the IPTF. MoIs were formally and forcefully detached from police power. More precisely, the ISRB system was introduced with the imposed amendments by the High Representative in 2002 at FBiH, cantonal and Brcko levels and with adopted amendments to RS LIA during duration of the mandate of UNMIBH. Although State Border Service (later Border Police) was already existing at that time and SIPA was also established later on, no ISRB was established at State level until adoption of Police Reforms Laws15 in 2008, which established the DPC and other support agencies, in addition to an Independent Board, Citizens Complaints Board, and Board for Complaints of Police Officials for state level agencies.
The LoPO was first adopted at State level in 2005, which was followed up at FBiH level in the same year. Starting from 2006 until 2008, LoPOs were adopted at Brcko and cantonal level. Harmonizations of LoPOs were completed as of 2010 with the adoption of RS LoPO.
The new Law on Border Police was adopted in 2004, which was followed also by the adoption of a Law on SIPA in the same year, through which SIPA became an investigation agency. The principles of these State level laws as per legal and budgetary status of the police were among the inspiring elements for adoption of a new FLIA in 2005, in addition to necessity of harmonizing the 2002 version of FLIA, which had been imposed by HR, with the adopted FLoPO in 2005. The new FLIA that was adopted in 2005 kept the provisions related to ISRB.
An initiative of revising CLIAs was launched in 2007, but due to the substance of the presented concept as well as different views on crucial features of the draft, and despite an intense engagement of the International Community under EUPM’s technical coordination, CLIAs were adopted only in Canton 3 (Tuzla) and Canton 5 (Gorazde) in 2010. Within the Federation and in all other cantons only a drafting stage was reached. Since end 2008, EUPM reinforced further and systematic efforts to assist in harmonisation of LIA and LoPO, and incorporated this into the Mission Implementation Plan.
In April 2011, following the election period of 2010, cantonal Ministers of Interior and the Minister of Interior of the Federation launched a new initiative of harmonisation. This initiative was intended to make the drafting process of the FLIA and the CLIAs a main priority within police legal and regulatory framework issues. To the surprise of some, a different accent to the substance of the draft was introduced into the public discussion, emphasizing the need for improved “civilian oversight”, and assuring safeguards on “operational autonomy” of the police. EUPM continued with its policy of technical assistance and was consulted on whether the new aspects, namely the intent to increase accountability of Police Commissioners/Directors towards Ministers would be in line with EU viewpoints16.
During the same time period, EUPM observed development within some ISRB that gave raise to the question as to whether any system that is designed for ensuring accountability can, in the long run, function without being incorporated into a larger system of checks and balances17: Inter alia, in late 2010 EUPM monitored and supported “Operation KASTEL”, a large scale investigation into the involvement of some senior leadership of the Police of Una-Sana Canton, including the Police Commissioner himself, into organised crime, corruption, and other forms of crime. The subsequent arrests shook the system and created BiH-wide long-lasting attention. On a local level the Minister of Interior undertook visible efforts to cope with this situation. He kept close contact to EUPM leadership. At later stages of the CLIA reform discussion, he and other Ministers of Interior referenced this case when pointing at the accountability deficiencies that they correctly perceived18: Operation KASTEL includes allegations that the then Police Commissioner successfully corrupted the ISRB, safeguarding the ISRBs support for his second term19 of Office.
An example on a structural level for EUPMs concerns can be demonstrated by reference to an existing ISRB: The President of this ISRB is a Chief Prosecutor in the same jurisdiction; the Deputy President is the President of the Appellate Court of that jurisdiction; one member is a Police Commissioner of a neighboring jurisdiction; another one a Deputy Director of a State level law enforcement agency and former Police Commissioner of a neighboring jurisdiction; another member is a former Chief of a neighboring Public Security Center/RS MoI, just two members are civilian representatives. This ISRB showed malfunctions in 2011 when three members launched reports against each other.
The declared intention of the move by Ministers of Interior on Federation and cantonal level on how to redesign lines of accountability of Heads of police agencies was to address the relation between Police Commissioners / the Federation Director of the Police Administration and respective Ministers of Interior. The core can be best described through what Federal MoI Kurteš himself stated in a meeting with EUPM HoM20: “There is not much to change, except for a clear statement that the Minister is No 1 in the Ministry and that the DoP/PC shall be answerable to him. The problem is with decreasing authority of the ministers and failing coordination, and the reason is not the Law, rather the vanity of police chiefs and ministers.”
The intended reform set the stage for diametrically opposed assessments on the motivation behind. All too often dogmatic and fundamental views dominated, too rare were occasions when substance was discussed: For some, the reform aimed at increasing accountability of the system governing policing, whilst explicitly stressing the operational independence of the police; for others the motivation behind was nothing more and nothing less than the blunt attempt to exert undue political influence over the police: To politicise policing. EUPM agreed with the assessment that policing was more and more politicised, but reminded internally of the fact that amongst those who declared that their intent was to safeguard the Police from undue political influence, there was considerable political motivation along the line of political parties dominating the scene in the Federation of BiH: An increasingly antagonistic stance developed between so-called “platform parties”, mainly the SDA and the SDP. Both Ministers and some Heads of police agencies appeared to exchange political arguments along the line of their respective political affiliation21.
Typical socio-psychological reactions of individuals and groups to fundamental reform and change22 add: The reform initiative aimed (and aims) at changing accountability procedures that were created under the UN IPTF and the OHR until 2002. Thus, Police Commissioners and the Director of the Federation Police were confronted with a ministerial intent to make them answerable to them, which was not the case for more than ten years. EUPM observed several long-lasting examples of strained relationships between a Minister and a Police Director or Police Commissioner, at times beyond acceptable limits23, at times even including publicly visible hostility and proxy-wars conducted through media.
By the end of 2011, the differences of opinion and related issues regarding Law on Internal Affairs (LIAs), both at Cantonal and Federation level, had not changed much, in particular those to do with the ministerial level versus police commissioners/directors. However, EUPM had used its advisory role with the law enforcement agencies and succeeded in encouraging the Federal and Canton Sarajevo Ministers of Interior to submit their drafts for opinion to the European Commission for Democracy through Law, called the Venice Commission. Further to this EU perspective, the EU Delegation suggested to domestic counterparts to slow down speed, to allow for and to accept advice.
The Venice Commission’s assessments on the draft FLIA and Canton 9 LIA are publicly available24. The Commission’s opinion was quickly absorbed into most favorable public interpretation of either side. On occasion of frequent requests from interested media to have EUPM commenting on this, EUPM reminded to carefully assess the substance, and to recognise that the Venice Commission had not concluded that the draft laws were inflicting on the contested operational independence of the police. Rather, the Commission had welcomed the draft laws25.
Essentially, the public discussions towards the end of 2011 and throughout the first months of 2012 brought more visibility to the fundamental political reason for the conflict: Disparities between the platform parties of SDA and SDP over the federal and cantonal LIAs proposed by SDP Ministers of Interior brought a new crisis to the Federal coalition government in mid November. The BiH Minister of Security (SDA), and other top SDA party officials sharply criticized SDP’s legislative initiative. In return, the Federal Prime Minister (PM), (SDP), answered back that it was scandalous for an SDA member of the state parliament and SDA vice-president to state that “the police commissioner/director should be responsible to the Independent Board, to the parliament, maybe to the government, but…not to the minister”. The Federal PM qualified this as an undemocratic statement and the proposal that the Police should not be answerable to the Interior Minister as unprecedented in the European practices. It is fair to summarize that leading political parties alleged each other of attempting to increase political control over the Police.
According to EUPM’S record, police commissioners/directors of police and political office holders use to swap regularly and this appears to be the case for all current commissioners. There is an obvious dependence of incumbents of senior police functions from political parties or interests. In an overall political environment with most political parties formed along ethno-political lines such a regular swapping tends to even increase the politicization of police work.
The Independent Selection and Review Board (ISRB) proved to be heavily politicized as well. The ISRB proved to be ineffective and unable to exercise their review role and hold commissioners accountable. In this perceived vacuum in the system of accountability ministers attempted to fill in.
The ensuing EUPM internal discussion shaped even more the clear formulation of policy26. This process involved, to a considerable extent, coordinating activities within the EU and larger International Community. In essence, EUPM kept maintaining a position that focussed on guiding principles that were justified by International and European standards and requirements. EUPM was wary of not getting drawn on either domestic battling side27, as was frequently attempted. A comprehensive dialogue within the International Community continued to confirm a joint view on important principles such as (1) “operational independence”, (2) accompanying requirements of the side of financial, human and material resources that enable exercising this independence, and (3) strong statements on policing accountability.
As a result of the process towards the end of 2011 and throughout the transitional months of 2012, notably taking into account the most important and helpful analysis of the draft LIA by the Venice Commission, EUPM was able to publicly shape its policy position on pressing problems governing police. Subsequently, EUPM devised a communication strategy, on HoM level, that led to a systematic communication of this policy through the media28.
In conclusion, the process of reform of the legal and regulatory framework within the Federation of Bosnia and Herzegovina is key for maintaining, sometimes even restoring, and increasing accountability of police, whilst ensuring their operational independence. The political controversy in which some Heads of police agencies have taken a political side is far from over. Rather, at the time of this writing (May 2012), lines of conflict run deeper than ever, with visible hostility on the side of some Heads of police agencies towards relevant Ministers. Still, in some quarters the wish to solve this problem through international engagement is existing, but decisively rejected within the EU. A democratic discussion of relevant principles is in a political gridlock. The sincerity of motivation by some domestic actors has become an increasing concern of EUPM.
The development has led to an ever increasing EU synchronization in order to ensure consistency and coherence of messages, across actors and over time, including beyond the end of EUPM’s mandate. At this stage, the attempted domestic reform issue may get stuck in the fierce resistance by some players, which may lead, in turn, to further erosion on accountability of police forces, especially in the Federation. On the other side, if the reform progresses and manages to shape a public discussion on the role and accountability of police, it may well have larger implications within Bosnia and Herzegovina, by way of harmonisation. There is a an important view expressed by some Ministers of the Interior to EUPM HoM throughout 2011, referencing the objective of the reform to the situation within the Republica Srpska: On a technical level, the degree of accountability of that system is perceived as being better, by those Ministers within the Federation.
The development documented in this chapter is an example for the surfacing of a longer lasting challenge for BiH: The technical implementation of mechanisms for governance of policing can be achieved within the timeframe that was available in BiH from after the conflict until now. However, sustainability of any achievements depends on cultivating underlying values. The development of a genuine domestic understanding of the guiding principles and values that shall guide the implementation of democratic governance is a process which, in the case of transformation of post-communistic societies, is requiring more time: EUPM has contributed to the technical development, and could make valuable contribution to the underlying democratisation process. However, the societal and political development in Bosnia and Herzegovina that will ensure sustainability of efforts by way of firmly implementing the necessary underlying values, requires other tools of assistance.
In BiH, the fragility of the achievements in the realm of accountability of policing is a direct function of the many years of deterioration of political dialogue between 2006 and 2012, with the absence of a State level government for 16 months until beginning of 2012. The increasing political selfishness has led to attempts to control the system, including by those who declare their good intention protecting it. The deeply rooted tradition to manipulate the public through media and the absence of strong civil society are conducive to such attempts.
However, an application of external coercive instruments is not an option: The potential of a structured dialogue within the EU accession context will greatly assist, on a technical level, related experiences within the Visa-Liberalisation process refer. An assistance to the development of a deeper and long-term strategy is recommended, focussing on values and relevant education. A begin to this could be made through putting the Rule of Law/Police Section of the EUSR to good use.
1 Attachment 1
2 As an example, reference can be made to systematic assessments of police agencies by the United Nations International Police Task Force (UN IPTF), called “Systems Analysis of the Police” at the end of its mandate, late 2002. Attachment 2 includes two examples, for the Federation and the Republica Srpska Administrations of Police.
3 Document st14035/05 RESTREINT UE, 04 November 2005
4 “The ultimate political goal is for BiH to join the EU as a sustainable, multi-ethnic, peaceful and democratic state. In the medium term, it is to set BiH irreversibly on track for EU membership within the SAP process. To achieve this objective, strengthening the rule of law and the development of an effective, independent and accountable police service (as identified by the Police Restructuring Commission) are crucial. In this context, success in the fight against organised crime is likely to be one of the determining factors in BiH’s progress towards Europe.”
5 Document st13592/07 RESTREINT UE, 08 October 2007
6 Emphasis by the author
7 Document st15419/11 RESTREINT UE, 14 July 2009
8 Attachment 3 – Mission Magazine 56 of 19 January 2009. The EUPM Mission Mag enjoys a large distribution and readership, within national and international circles. It is published bi-weekly and can be found under http://www.eupm.org. Often, articles from the Mission Magazine will be reprinted within domestic press.
10 Attachment 4 –
http://www.unodc.org/documents/justice-and-prison-reform/crimeprevention/PoliceAccountability_Oversight_and_Integrity_10-57991_Ebook.pdf – United Nations, New York, 2011, ISBN 978-92-1-130307-0, eISBN 978-92-1-055037-6
11 See EUPM’s Six Monthly Reports for the period between 2009 and 2011, and reference to it in the chapter “On Institutionalised Cooperation”
12 EUPM promoted LIA templates, through strengthening legal and budgetary status of the Police as well as further detailing the provisions on cooperation issues, aiming to provide conditions for functioning of the Police in an operationally autonomous manner, while also substantially enhancing the authorities of the Minister and Government, to which Police should be fully accountable, in order to ensure a proper civilian oversight over the Police.
13 That version of RS LIA remained in force until January 2012, when a new RS LIA came into force. The new RS LIA is prepared to harmonize the LIA with the other legislation, especially with the RS LoPO that was adopted in 2010. The new RS LIA still kept the provisions related to ISRB and did not introduce any changes in the organizational structure of the Ministry and authorities of the Minister and Director of Police.
14 For example: Establishment of State Border Police (later renamed to Border Police) in 2000; Ministry of Security 2003/2004; State Investigation and Protection Agency in 2004, Service for Foreigners Affairs 2006; Directorate for the Coordination of Police Bodies in BiH 2008.
15 Law on Directorate for Coordination of Police Bodies and Agencies for Support to Police Structure of BiH and Law on Independent and Supervisory Bodies of Police Structure of Bosnia and Herzegovina
16 EUPM confirmed this in essence, outlining guiding principles, including through statements and speeches which HoM was invited to give. The harmonization of related views within the larger International Community proved to be more intensive. Throughout 2011, some differences in these views became publicly known through a combination of public statements.
17 For example, EUPM argued for an increased role of civil society and put a lot of efforts into the support to its development. The role of civil society, crucial for any transparent oversight over governance, including in this context, or, e.g. in the context of corruption, remains underdeveloped in Bosnia And Herzegovina.
18 Some were, in meetings to which EUPM was invited throughout 2011, internally and also in presence of the media, very vocal about the lack of accountability, and quality of service delivery, in the case of some Police Commissioners, and in relation to the structural weakness of the system allowing this, in general.
19 At the time of writing, the case is pending, therefore EUPM will not be in a position referencing to details.
20 2 June 2011
21 In several one-on-one conversations between HoM and domestic partners they confirmed this.
22 Which always creates fear, sometimes only because change is perceived as a threat to security, but also because change threatens structures that have arranged themselves comfortably.
23 Notoriously, and even with entirely different setups of Ministers and Directors, in the Federation. Likewise, the relationship between Police Commissioner and Minister in Canton 9 (Sarajevo) worsened beyond reasonable limits in 2010 and 2011.
25 For several of such interviews, here the quotation of what HoM stated in an interview by “Slobodna Bosna”, 12 April 2012: “I note how domestic stakeholders interpret in different ways what the Venice Commission has written. There is a considerable difference between how interested parties see the Commission’s opinion. My view is that the Venice Commission did not say this is the best law that we have seen so far, but the Venice Commission said that it is acceptable within the framework of European practice and within the framework of drafting the laws. The Commission has also said there are parts that could be done better. But, it has not said that the draft law is about the imposition of political will.”
26 HoM had concluded policy discussions by way of written guidance already at earlier stages.
27 Including through a considerable number of written letters that were sent, by the Federation Director of the Police Administration and the Police Commissioner of Canton 9 to a large number of recipients within the International Community, alleging Ministers of exerting undue political influence, and even a criminal complaint filed by the Police Commissioner of Canton 9 against the Minister of Interior of Canton 9 on abuse of office, in March 2012.
28 As prominent examples, three items are referenced: (1) Early February 2012, HoM contributed an Editorial to a leading BiH newspaper (Oslobojenje) on “Governing the Police” which was reprinted within other media and also in EUPM’s own Mission Magazine (attachment 5). (2) 09 April 2012, HoM went on public record in the Banja Luka-based newspaper Nezavisne Novine (attachment 6). Finally (3), the same message was repeated in a comprehensive manner within the Sarajevo-based weekly magazine Slobodna Bosna, 12 April 2012 (attachment 7). The articles found widespread attention and were reprinted in electronic media.