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Bosnia’s Gordian Knot: Constitutional Reform
Bosnia’s Gordian Knot: Constitutional Reform
Table of Contents
  1. Overview
I.D. Politics: Sarajevo Protest Shows a Weakened State
I.D. Politics: Sarajevo Protest Shows a Weakened State

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

I.D. Politics: Sarajevo Protest Shows a Weakened State

Sarajevo saw its biggest demonstration in years on the evening of Thursday, 6 June, and into the Friday morning  as thousands of citizens surrounded the Bosnian capital’s parliament building and refused to allow those trapped inside to leave. They were angered by the government’s failure to amend the laws needed to keep issuing ID numbers after the Constitutional Court struck down an ID law. In a legal limbo, newborns have been deprived of numbers, passports and other services. Police finally evacuated the building at 4 am today.

What is this all about? The Constitutional Court rejected the law on citizens’ identification numbers in May 2011 because it used names of municipalities in Republika Srpska (RS), the smaller of Bosnia’s two entities (the other being the Federation of Bosnia and Herzegovina, or FBiH). The municipality names had been changed, in response to another court case, so the Constitutional Court maintained that a law based on inaccurate place names could not be upheld. In January 2013, when parliament missed deadlines to amend the law, the court erased it, leaving no legal basis on which to issue new numbers. The Council of Ministers submitted a draft law featuring registration areas aligned with the entity boundaries, as RS leaders preferred. However, delegates from FBiH, the larger entity, wanted to keep the old registration areas, which crossed entity lines, and to change only the now-outdated municipal names. On this dispute, all attempts to amend the law foundered. Children born in recent months are unregistered and unable to get passports and access other services. One such child, Belmina Ibrišević, needed surgery available only abroad; her plight galvanised public opinion.

When I visited the parliament on Thursday I must have looked suspiciously parliamentary, because the crowd jeered me at first before I waded in for a chat. Coming back later that day, I saw the crowd had grown and got rowdier. I saw youths converge on an older man who tried to break through. He was knocked down before police could protect him. Elsewhere, however, children played as their parents watched, and the overall atmosphere was calm.

An imam at the protest (left) with Crisis Group’s Marko Prelec. CRISIS GROUP An imam at the protest (left) with Crisis Group’s Marko Prelec. CRISIS GROUP

Though the demonstration is about the government’s egregious failure to provide the basic service of an ID number to its citizens, it has catalyzed other accumulated grievances. I spoke to a young imam (pictured, above) who had worked in both entities. In Zvornik (RS) his mosque had been vandalised and the Bosniak (Muslim) population complained of being shut out of virtually all state jobs; yet in the Bosniak-majority FBiH, he was fired after he refused the local mayor permission to give an election speech in the mosque.

There are countless such stories in Bosnia, with most people feeling very much left outside the charmed circle of prosperous officials.

Inside the parliament building, which also houses the prime minister and much of the government, over a thousand delegates and their support staff huddled with about 250 foreign bankers assembled to discuss investment opportunities in Bosnia. The prime minister managed to get out through a window with his bodyguards, and a few others were evacuated for medical reasons, but almost everyone else was stuck until early this morning.

Bosnia’s widely respected Central Bank governor Kemal Kozarić appealed for the release of at least the visiting bankers, who plainly bore no blame for government failures: “I will resign in writing if only you will let these people go…. I think I am responsible too, I picked this [location]. I thought the state had to show it was ready to welcome investors. I made a mistake.”

The local police were out in force and looked capable and well-equipped. It’s a mystery why it took so long to give the order to create a cordon and let those trapped inside out. One possibility: Bosnia has so many overlapping jurisdictions that it’s hard to work out who is responsible (cantonal, entity or state level officials?) and when there’s a high possibility of televised mayhem, no one wants to make a decision. (When a gunman opened fire on the U.S. embassy in October 2011, it also took hours for a police sniper to get the order to shoot him in the leg, though he was all alone and in plain view.) BiH security minister Fahrudin Radončić, whose office is in the blockaded building, told Bosnian state television that “we have suffered serious harm as a state. From today on we will have serious political consequences because Serbs and Croats won’t consider Sarajevo a safe city”.

Serb leaders seized the opportunity, claiming – as far as I could see, without any evidence – that the demonstration was directed against them. Top Serb state and entity level leaders met today and said they affirmed “every public expression of opinion” and praised the police for avoiding injuries, but warned they would have to reconsider how Serbs take part in Sarajevo-based institutions in the near future. They have a point – the crowd clearly supported the FBiH view on the ID law, and demanding legislation under duress is wrong – but using this event to justify a pullout from state institutions or to stoke fears would be a mistake.

The one winner in all of this may be Bosnia’s international overseer, High Representative Valentin Inzko, who appeared on the scene at 2:30 in the morning and brokered the deal allowing police to get the people out. In theory, Inzko has virtually unlimited powers in Bosnia, but in practice has not had the political support to use them for several years. Yet many, especially in Sarajevo, still yearn for him to intervene; a demonstrator told him “you are the top of this state, we trust you…. as a citizen and as a man I appeal to you to do something”.

That, in a nutshell, is Bosnia’s problem: everyone understandably wants its leaders to “do something” that they seem unable or unwilling to do, whether it is as trivial as issuing ID numbers or as consequential as amending its constitution. It almost always comes down to a clash of two or three incompatible conceptions – usually an RS preference to empower the entities and a Sarajevo desire to reinforce the state.

Many Bosnians are enraged at the government, and maybe at anyone who looks sleek and prosperous, with a suit, a car and driver – the marks, in this struggling country, of membership in the governing elite. Rage isn’t too strong a word. Virtually everyone I spoke to supported the demonstrators and thought the officials holed up in the parliament were leeches, thieves or worse. ”We should just burn the whole thing down and start over from scratch”, gesturing at the parliament and government buildings.