Bosnia’s Gordian Knot: Constitutional Reform
12 Jul 2012
Only thorough constitutional reform can resolve Bosnia and Herzegovina’s deep political crisis and implement a landmark European Court of Human Rights decision to put an end to ethnic discrimination.
Bosnia’s Gordian Knot: Constitutional Reform, the latest briefing from the International Crisis Group, argues that change is essential but a quick fix risks undermining the country’s fragile ethnic balance more than improving minority rights. The European Union (EU) has made reform a precondition for progress towards membership. But past efforts to revise the Dayton Agreement that ended the war in 1995 have failed.
Tensions between two aspects of Bosnia’s federalism – the division into two territorial entities (the Federation of Bosnia and Herzegovina and the Republika Srpska) and three constituent peoples (Bosniaks, Croats and Serbs) – have become increasingly difficult to reconcile. The European Court of Human Rights ruled in 2009 that minorities’ exclusion from the three-member presidency and upper house of parliament is unlawful. All main parties agree that change is needed to eliminate discrimination but they do not concur on how to preserve the rights of the three constituent peoples, especially those of the smallest group, the Croats.
“Bosnia must use the European ruling as a springboard toward a modern constitutional architecture”, says Marko Prelec, Crisis Group’s Balkans Project Director. “It should not defer taking action but reform will be a long process; and the next steps will decide whether the country survives to move towards Europe or begins a process of disintegration which will not end peacefully”.
A sound solution must clarify which constituents officials are primarily accountable to; allow voters rather than mid-level officials to choose national leaders; give all three constituent peoples an effective means of influencing state policy; provide room for those who identify as citizens rather than in ethnic terms; and avoid overly complex rules that can create obstruction.
Two and a half years after the court’s Sejdić-Finci decision, Bosnian leaders have made no progress in implementing the ruling, and this failure is delaying the EU accession process. Meanwhile, state institutions are under attack and the political crisis has grown more acute, particularly with the collapse of the government in May. A new constellation of parties is trying to assert control against former partners in state and federal government who are clinging on to their positions. Prospects are unclear and efforts to reform the constitution have focused on cementing main party leaders’ already extensive hold on power rather than ensuring greater democracy and accountability.
The EU should understand that there is no easy way to implement the ruling and satisfy all the main political parties. It should work on comprehensive constitutional reform with the Bosnian leaders as the end goal of membership talks, not its precondition.
“Bosnia’s constitution not only increasingly is an obstacle to EU accession, it also precludes healthy relations among the country’s regions and communities”, says Sabine Freizer, Crisis Group’s Europe Program Director. “Eventually, Bosnia has to move to a stronger territorial federalism without an explicit ethnic component”.