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Bosnia’s Gordian Knot: Constitutional Reform
Bosnia’s Gordian Knot: Constitutional Reform
Table of Contents
  1. Overview

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

Briefing 66 / Europe & Central Asia

Brčko Unsupervised

The international community should start a process to close its supervision of Bosnia’s Brčko District at its meeting next week and develop a new strategy to better help domestic institutions address governance challenges and corruption, while retaining the ability to sanction any attempts to undermine security.

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I. Overview

It is time to close international supervision of Bosnia’s Brčko District. Once seen as a model of post-war reconciliation and good government, it is drowning in corruption and mismanagement that flourished despite its supervisors’ best efforts. The territory is vital to Bosnia and Herzegovina (BiH)’s stability: it links the two halves of both Republika Srpska (RS) and the BiH Federation (FBiH), and belongs technically to both entities but is independently governed and multi-ethnic. Many of its former leaders are under suspicion in a corruption probe that may have only scratched the surface; several high profile development projects are collapsing in bankruptcy and litigation. RS has a strong influence on the district but is not threatening to undermine its status. Nevertheless, the international community should ensure that Serb leaders of that entity are left in no doubt that any move to take Brčko over would meet a strong reaction. Stability is now dependent on whether local politicians, law enforcement and the judiciary can take responsibility. International supervision is no longer helping, and a new strategy is needed.

A special international Arbitral Tribunal established as part of the Dayton Peace Accords created the Brčko District in August 1999 (the “Final Award”), under the exclusive sovereignty of Bosnia and Herzegovina as a multi-ethnic, democratic unit of local self-government. An international supervisor, who also serves as Deputy High Representative, was also appointed in 1997 to oversee implementation of the Dayton agreement in the Brčko area with executive authority to promulgate binding regulations and orders.

In 2009 the international community assessed that Brčko institutions were functioning effectively and apparently permanently, the main condition that had been set to enable closing down the special supervision. Since then additional conditions have been put mainly on the RS to demonstrate that it has no intention to usurp Brčko authority. The Serb entity is making no claim on the district, and apparently has formally fulfilled the final condition by acknowledging that the inter-entity boundary line (IEBL), which splits Bosnia’s two entities, does not run through Brčko.

This may appear the wrong time to end international supervision. The district faces its greatest crisis yet of governance and economic development, due to hardening political positions and endemic corruption. All Bosnia is being shaken by a political and economic crisis. Over a year since the October 2010 elections, there are neither a state government nor 2011-2012 state budgets. Some fear the RS is increasingly intent on declaring independence from BiH, and Brčko will become the site of renewed violence in connection with such manoeuvres. But supervision there involves only the town’s internal governance; it cannot affect BiH-wide security, which remains the responsibility of the already weakened High Representative (OHR) and the EU member state force (EUFOR).

The Brčko international supervisor has not stemmed corruption for more than a decade and has neither resources nor international support to impose change now. Retaining him as ultimately responsible in the town provides an easy way for local politicians to avoid finally exercising that responsibility and accountability which Bosnians must ultimately show themselves capable of to protect their own basic interests.

The FBiH has neglected Brčko District since its establishment, creating a vacuum RS is eager to fill. The Federation government, and the FBiH-based parties with branches in Brčko, should work to improve relations with local business and political elites to balance the weight of Banja Luka. For its part, RS has legitimate interests in the district and has contributed much to its economic revival; this benign influence should be encouraged to continue and grow. Working together through the BiH state, Serbs, Bosniaks and Croats should also cooperate in agreeing to locate at least one significant government agency in Brčko District. All should intensify efforts to fight local corruption, especially strengthening independence of police, prosecutors and judges.

Moreover, at the same time as the international community acts to compel local officials to take responsibility for their own affairs, it should take parallel steps to make clear that its commitment to the independence and territorial integrity of Bosnia remains firm and that any attempt by RS to violate the provisions of the Dayton peace dispensation including the special status of Brčko will be met decisively. RS’s interests in Brčko must not be allowed to lead to a belief that it can successfully question the Final Award. Accordingly:

  • At the Peace Implementation Council (PIC) meeting on 12-13 December, the Brčko supervisor should recommend that supervision close within a set number of months, but that the Arbitral Tribunal stay open as a safety mechanism. In case of a grave violation of Brčko’s autonomy by RS (or the FBiH), the retained tribunal could reopen supervision or modify the Final Award and assign the district to the other entity. Closing supervision and retaining the tribunal were not foreseen in the Dayton Peace Agreement or in the Final Award of 1999 but is being seriously considered by PIC members. It seems unlikely that a claim against this strategy could be sustained if the PIC Steering Board, the Brčko supervisor and the head of Brčko Arbitral Tribunal, U.S. diplomat Roberts B. Owen, agree to these steps, as they have to the maintenance of the tribunal twelve years after the Final Award was made.
     
  • The EU should give further indications of its intention to pay greater attention to Brčko. Its delegation to BiH should help Bosnian officials fight corruption through strengthening the rule of law and relevant institutions, and preparing for the EU accession, including by opening a new office in the district, as the regional office of the OHR headed by the supervisor closes. Most of the responsibility for adopting and implementing the acquis communautaire, the body of EU law, falls to Bosnia’s entities and cantons – and on Brčko, which has a much smaller capacity. It will need support through gradual reform. A useful first step would be for the supervisor in his final months to work with the government to encourage adoption of the Anti-Corruption Strategy for 2009-2014, which the EU could help implement.

 

Sarajevo/Istanbul/Brussels, 8 December 2011