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Bosnia’s Gordian Knot: Constitutional Reform
Bosnia’s Gordian Knot: Constitutional Reform
Table of Contents
  1. Overview
Bosnia and Herzegovina: Deterring Disintegration
Bosnia and Herzegovina: Deterring Disintegration

Bosnia’s Gordian Knot: Constitutional Reform

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.

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I. Overview

Bosnia and Herzegovina’s system of government has reached breaking point and the country’s path to European Union (EU) membership is blocked. The constitution requires that the posts in two key institutions, the three-member presidency and the parliamentary House of Peoples, be equally divided among Bosniaks, Croats and Serbs. The European Court of Human Rights (ECtHR) ruled in 2009 this violates the European Convention on Human Rights (ECHR) by restricting others’ access. The European court’s ruling has exposed long-buried contradictions in Bosnia’s constitutional architecture, which have become more acute since the 31 May 2012 collapse of the government coalition. Bosnian politicians need to reform their constitution but reopening the Dayton Agreement will require more than a quick fix. The EU should not make implementing the ECtHR decision a prerequisite for a credible membership application if it seeks thorough comprehensive reform to put the country on a firm footing.

Bosnia’s failure to implement the ECtHR’s landmark judgment on the Sejdić-Finci case baffles observers. Discrimination against minorities such as Jews and Roma is repugnant. Yet more than two and a half years later, despite strong international pressure and a concerted push to find a solution in spring 2012, Bosnian leaders have made no progress in executing it. Even sympathetic observers wonder why the country persists in its “racist” constitution. The Council of Europe warns that neither it nor the EU would consider the 2014 elections for Bosnia’s parliament legitimate without the necessary constitutional amendments.

Yet almost nothing about the Sejdić-Finci case is as it seems. Implementing the judgment will not necessarily improve the situation of minorities, whose marginalisation is due more to political culture than to the impugned constitutional provisions. The dispute is not driven by discrimination which all BiH parties agree must be eliminated. It is about whether, and how, to preserve the rights of Bosnia’s constituent peoples, especially those of the Croats who are the smallest group. Their position is likely to get a new boost when Croatia joins the EU in 2013.

Though the ECtHR case is technical, it raises fundamental questions about Bosnia’s constitutional architecture and has opened dangerous and important issues buried since the end of the war in 1995. In a stinging dissent, Judge Giovanni Bonello condemned the court’s judgment and warned of the dangers of challenging the status quo. Local leaders echo the warning. Bosnia suffers from unresolved issues similar to those which sparked Yugoslavia’s collapse, and a botched set of amendments could make keeping the country together much harder. At the same time, more delay in implementing the court’s judgment means more delay in progress toward the EU, one of the only points on which all Bosnia’s constituencies agree.

Tension between the two aspects of Bosnian federalism – the division into two territorial entities (the Federation of Bosnia and Herzegovina and the Republika Srpska), and three ethnic communities known as constituent peoples (the Bosniaks, Serbs and Croats) – has been growing for a decade. It is no longer sustainable. As Crisis Group described in its reports over the past two years, state institutions are under attack and there is a crisis of governance in the federation and the Republika Srpska. Institutions at all levels are highly inefficient and politicians ignore difficult policy choices and seem immune to domestic or international pressure.

It took fourteen months to form a state government after the October 2010 elections; this fragile coalition broke down less than six months later, on 31 May 2012. A new constellation of parties is trying to assert control, but its former partners in state and federal government are holding on to their positions and the prospects are unclear. What attention they have given to implementing the ECtHR decision has focused on a solution that cements party leaders’ already extensive hold on power. In Bosnia the government and its politicians are not only unable to resolve the problems; they have become a key problem themselves.

There is a popular assumption among Bosnia’s European friends that implementing the European court’s decision and changing its constitution will go some way in improving governance. But there are no quick fixes. It will mean reopening the Dayton Peace Agreement which ended the 1992-1995 war, re-balancing the compromises made in that agreement, and embarking on a comprehensive constitutional reform. Though a return to violence remains unlikely, these issues are highly emotional and risk extending political paralysis and leading to state failure. Bosnia’s leaders believe the EU requires only a technical fix, even if it leaves the country even less governable. Ultimately, the decisions taken will decide whether Bosnia survives to move toward Europe or begins a process of disintegration that will not end peacefully. To avoid this grim prospect:

  • Bosnia’s political leadership should refocus on constitutional reform, including the execution of the European court’s decision. It should adopt measures that: clarify whether and how elected and appointed officials are responsible to specific groups, all citizens, or those who voted them into office; allow voters rather than mid-level officials to choose national leaders; give Croats an effective means of influencing state policy; provide room for those who identify as citizens rather than in ethnic terms to have a voice; and avoid overly complex rules prone to obstruction.
     
  • EU states should lift their conditioning of Bosnia’s candidacy on implementation of the court ruling. Comprehensive constitutional reform should be the end goal of membership talks, not its precondition.

This briefing explores the challenge posed to Bosnia’s constitutional framework, its key institutions and the constituent people concept by the Sejdić-Finci case. It is the first in a two-part series as Crisis Group plans to elaborate on the options for constitutional reform, from minimalist to maximalist, in a report to be published early in 2013.

Sarajevo/Istanbul/Brussels, 12 July 2012

Bosnia and Herzegovina: Deterring Disintegration

Trust between Bosnia and Herzegovina’s politicians has broken down following threats from Serb leader Milorad Dodik, the most serious challenge since the 1995 Dayton Accords. In this excerpt from the Watch List 2022, Crisis Group urges the EU and its member states to mediate the dispute between Bosniak and Croat leaders while supporting an inclusive constitutional reform to reduce the risk of violence.

The Dayton peace agreement that has held Bosnia and Herzegovina together since the 1991-1995 war is unravelling. For more than 25 years, that accord has united two self-governing entities – one dominated by ethnic Serbs and the other by Bosniaks (Bosnian Muslims) – in a single state. But now Serb leader Milorad Dodik is threatening to withdraw from state institutions, including the army, that are shared among the country’s three main ethnic groups, Bosniaks, Serbs and Croats, in a bid for greater autonomy that could be part of a drawn-out process of secession. His challenge to the Bosnian state is the most serious since the 1995 Dayton Accords ended the Bosnian war. It also comes at a moment of intense polarisation among the country’s three “constituent peoples”, as the constitution calls them. Trust among those communities’ politicians has almost entirely broken down, with a long-running dispute between Bosniak and Croat leaders over the country’s election law having produced a tactical alliance between Croats and Serbs – who already share a dislike of central authorities in Sarajevo.

Efforts by the European Union (EU) and member states will be key if Dodik is to be moved off his current path, which risks deepening instability. But while deterring Serb separatism is necessary to see the country through the year in one piece, it will not be sufficient for Bosnia to survive over the long term. The country’s leaders need to find a way to work together again. If the immediate crisis can be overcome, European leaders should support a process to repair Bosnia’s constitutional foundations, as Crisis Group has urged

To stop disintegration and reduce the risk of violence, the EU and its member states should:

  • Seek to mediate the dispute between Bosniak and Croat leaders by brokering a compromise to ensure that the Croats will be able to choose their representatives for national office in the October elections;
     
  • Seek to dissuade Serb separatists by making clear that the Serb entity will be isolated diplomatically and otherwise from the EU should it secede, and by threatening to impose harsh sanctions on any leaders and businesses who take major steps in the direction of secession, such as re-establishing a Bosnian Serb army or rejecting the jurisdiction of the Constitutional Court;
     
  • Make clear that following the elections European actors will support an inclusive, locally driven constitutional reform process and in this context affirm previous commitments to support ending international supervision, including by closing the Office of the High Representative and ending the role of foreign judges on the Constitutional Court;
     
  • Ensure that contingency plans to reinforce the EUFOR Althea peacekeeping mission are up to date.

Serb Separatism and the October Elections

Bosnia and Herzegovina is composed of two self-governing entities, one called the Federation of Bosnia and Herzegovina and the other named Republika Srpska (RS). RS is divided into eastern and western halves, which are joined at the centre by the Brčko autonomous region. The Bosnian state is headed by a rotating three-member presidency made up of a Bosniak, a Serb and a Croat. The Dayton Accords that established this framework also confer authority on an international overseer, called the high representative, who enjoys broad powers over local authorities as a formal matter, but whose assertion of them (a rare occurrence in recent years) has engendered controversy, especially in RS. Over the years, under pressure from the Office of the High Representative (OHR), the Bosnian state added a common army, judiciary and tax authority to its core institutions. The country hosts EUFOR Althea, a small EU-led peacekeeping mission. 

In October 2021, the governing coalition in RS, led by Dodik’s Alliance of Independent Social Democrats party, began pushing to cut the ties that bind it to the rest of the country. In practice this has meant taking back, or threatening to take back, powers once enjoyed by the two autonomous entities but subsequently transferred to the state in Sarajevo. Thus far, the authorities in Banja Luka, the de facto capital of RS, have reasserted control over medical regulation, while making moves toward assuming bigger responsibilities including for the armed forces, indirect taxation and judicial appointments. The RS leadership also rejects the jurisdiction of other Bosnian state agencies (such as the state police) as well as of the OHR. These separatist moves are a response to the previous high representative’s decision in July 2021 to impose a law criminalising genocide denial. While RS leaders acknowledge their forces committed atrocities during the war, they (along with most Serbs) deny that these amounted to genocide.

These unilateral steps are almost certain to be struck down by the country’s Constitutional Court, which may be the point. Dodik has been itching for a confrontation with the court, which has a record of past rulings unfavourable to Banja Luka. These include a September 2021 judgment striking down RS’s claim to jurisdiction over forests and other lucrative natural assets on its territory, as well as a November 2015 ruling banning the RS national holiday. The court is a good symbolic foil for Dodik because of its composition: two members from each “constituent people” and three members selected by the European Court of Human Rights who can neither be from Bosnia nor a neighbouring state. The court’s makeup means that the Bosniak judges can band together with the foreigners to outvote the four Serbs and Croats at key moments, which has happened in the past. A decision by this coalition striking down RS efforts to stake out greater autonomy could play into Dodik’s hands by inflaming secessionist sentiment among Bosnia’s Serbian population.

Serbian opposition parties agree with [Dodik’s] aim of taking back power from Sarajevo but criticise his strategy and timetable.

Thus far, Banja Luka has adopted a slow-motion approach to increasing its power, making threats and setting deadlines, then pushing them back to allow for negotiation in the hopes of winning concessions on sovereignty. Whether they are willing to stop short of secession is unclear. RS authorities could be engaging in a defensive action to reassert control over criminal justice processes (a power once exclusive to the self-governing entities but now partly transferred to Sarajevo) and ward off the potential for state prosecution of high-level corruption cases. They could be seeking to claw back other powers or pursuing other goals short of secession – or they could be seeking outright independence or union with neighbouring Serbia. Whatever the case, Dodik probably hopes that his moves will help him in the next election. Serbian opposition parties agree with his aim of taking back power from Sarajevo but criticise his strategy and timetable. They argue that RS cannot risk defying Western governments as Dodik is doing and are also reluctant to be seen following his lead in an election year.

The separatists’ approach leaves open some potential for a compromise solution. In past crises, Serbian leaders framed their demands as precursors to independence. This time, by framing their first steps in terms of return to what they call the “original Dayton” – in which two near-sovereign entities were linked by a small, weak central government – they may be aiming to force a renegotiation rather than a repudiation of Bosnian statehood.

A major impediment to any effort to achieve a negotiated settlement to the crisis, however, is that the Bosniaks and Croats are far from united in meeting the Serbs’ challenge to the Bosnian project. The majority Bosniaks are embroiled in bitter wrangling with the Croat minority over Bosnia’s electoral system, particularly as it relates to the three-person national presidency and fifteen-member House of Peoples (one of two legislative chambers). The system has been found wanting in several European Court of Human Rights judgments, one of which found that all citizens – not just members of the three constituent peoples recognised under the constitution – should be eligible to run for the presidency. For Bosnian Croats, a key demand is that they have a mechanism for electing their own representative to the presidency, perhaps by being allotted their own electoral district in which they are the majority. Such a mechanism would help prevent the Bosniak majority in the Federation from electing the Croat member of the presidency with minimal Croat support, as has happened on three occasions. For Bosniaks, however, drawing a Croat-majority electoral district seems like an unwelcome step toward separatism.

The long-running dispute poisons relations at the national level as well as in the self-governing Federation, but more immediately it undercuts any hope that the Croats and Bosniaks might present a united front against Serb separatism. Indeed, it has had exactly the opposite effect, drawing the Croats’ leaders and Dodik together in mutual opposition to Sarajevo. Croat leaders also take out their frustrations by obstructing government in the Federation when they can.

The country is thus divided into two almost equal halves, with the predominantly Bosniak Sarajevo-based parties that want to strengthen the national government arrayed against the Croat and Serb parties that seek autonomy if not complete independence from it. Serbs and Croats have different grievances and different goals – the Croats do not want to see RS secede – but support each other in most cases. In these conditions, and with an election looming in October, no one is inclined to compromise. Croats are threatening to boycott the polls if their demands are not met, and should they do so Serbs might try to organise their own parallel election. The ensuing dispute about who has been legitimately elected could tear the country apart. 

The one bit of welcome news in this scenario is the absence, at least thus far, of signs that leaders are preparing for armed conflict. Conditions throughout the country make civil war much less likely than in 1991, when strife last erupted. Years of emigration mean there are far fewer young people; those who remain do not want to fight and have no military training. There are almost no heavy weapons. Fighting could still break out unplanned – for example, if RS tries to evict state police from the border posts or if either side tries to take full control of the shared Brčko District. But even in the worst case it would be unlikely to feature the searing atrocities of the last war, in part because of the tragic reality that because of the conflict most territories are now (unlike then) ethnically homogeneous. For the time being, there is no need to reinforce the EU’s small peacekeeping force, but the Union should update its contingency plans in case the crisis deteriorates and fighting breaks out.

The EU's Role

The most urgent task is to prevent RS secession or widespread electoral boycott. No meaningful progress toward a sustainable future for Bosnia can be expected while such dangers loom. The EU and its member states, working with the U.S., should address these two main threats at the same time. Progress toward healing the Bosniak-Croat breach should make responding to the Serb challenge easier.

First, European officials should encourage Bosniak and Croat leaders to compromise on elections if the country is to escape serious harm. This task will not be easy. The problem is complicated and local leaders and international envoys have repeatedly failed to resolve it. But the urgency has never been greater or the costs of failure higher. Ideally, EU and U.S. envoys can persuade enough legislators to amend the constitution and election law in time for the October elections to go forward under the new arrangements. The compromise must allow voters in predominantly Croat regions to elect a representative to the state presidency, as those in predominantly Bosniak and Serb areas already can. If the clock on new legislation runs out, then a gentleman’s agreement to the same effect is the next best course.

For such an agreement to avoid a risky boycott, it will be necessary for Željko Komšić, the current Croat member of the presidency who is popular with Bosniaks but less so with Croat voters, to step aside for the good of the country. If Komšić runs, as he intends to, he will likely again win on the strength of votes from the Bosniak majority despite his lack of support among Croats. In that event, Croat parties will likely see reason to boycott. He can still play an important role in national politics, perhaps as chair of the Council of Ministers. Achieving compromise will also mean pressuring Bosniak and Croat leaders to back down from their maximalist positions. Notably, Croat leaders must stop obstructing Federation governance and agree to cooperate in reining in the RS. 

To deal with the risk of RS succession, the EU should make the costs of breaking away clear to Dodik and the Serbs. Secession would leave RS isolated from the EU diplomatically and otherwise. The EU and member states should shun a breakaway RS, and its leadership, if necessary to the point of closing European borders to it. However uncertain their impact may be, the EU should also threaten to match harsh U.S. sanctions on leaders responsible for moves such as establishment of an RS army or rejection of the Constitutional Court’s jurisdiction. It should expand its sanctions toolbox beyond the asset freeze and travel bans contemplated by the framework it has in place so that the possible penalties also include bans on EU citizens and firms doing business with sanctioned individuals and companies. (The U.S. imposed such measures on Dodik on 5 January 2022.) Brussels should also broaden the basis on which sanctions can be imposed: its current framework enables sanctions for undermining the Dayton Agreement or Bosnia’s sovereignty or territorial integrity. It should also add high-level corruption and organised crime to that list, and not hesitate to use the threat of sanctions as leverage in talks. 

Brussels should offer an off-ramp as well. In exchange for RS suspending moves toward separation and committing to participate in the October elections, the EU should urge the high representative to suspend his predecessor’s genocide denial law. There is precedent for such a compromise: the OHR “reinterpreted” a decision in 2007 in the face of Serb opposition.

These are all short-term moves, however, and by themselves they may not be enough even to see Bosnia past the obstacles that lie ahead in 2022. Without the prospect of resolving their complaints about how Bosnia and Herzegovina is governed, Serb leaders may conclude that the pain of whatever restrictive measures the EU can impose is the lesser of two evils. Brussels should therefore make clear that it will actively support a post-election effort to address those grievances. To this end, the EU should encourage, and offer to provide assistance for, a locally driven process to draft amendments to the constitution and place the country on a sustainable foundation. This process should aim to address accumulated frustrations on all sides, including resentment of international supervision. In this context, the EU should affirm its earlier support for ending both the OHR’s mandate and foreign participation in the Constitutional Court. 

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