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Bosnia’s Gordian Knot: Constitutional Reform
Bosnia’s Gordian Knot: Constitutional Reform
Table of Contents
  1. Overview
The Western Balkans: Fragile Majorities
The Western Balkans: Fragile Majorities

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

The Western Balkans: Fragile Majorities

Political instability keeps growing in the Western Balkans amid geopolitical contests and increased tensions with Russia. In this excerpt from the Watch List 2017 – First Update early-warning report for European policy makers, Crisis Group urges the European Union and its member states to engage intensively to ensure the political space for avoiding more serious crisis does nto entirely vanish in the Western Balkans.

This commentary is part of our Watch List 2017 – First Update.

Mounting political instability in the Western Balkans has the potential to spark new crises on the EU’s immediate borders. Political tensions are particularly high in Macedonia, Bosnia and Herzegovina (BiH) and Kosovo. Many EU policymakers are concerned that Russia aims to exacerbate this disorder, a worry that has intensified since elements of the Russian intelligence service were implicated in a failed coup in Montenegro last year. But the region’s crises are rooted in a prevalent winner-takes-all party politics and flaws inherent in the political settlements forged to end the Yugo­slav wars. While Russia has deep-seated interests in the Balkans, its interventions are more opportunistic than strategic.

[T]he EU [...] should concentrate on local sources of instability, which often are linked to ruling parties’ refusal to give up power despite losing elections.

The Balkans are a part of the ongoing geopolitical contest, but local sensitivities are much stronger drivers of events and risks in the region than geopolitics: the EU therefore should concentrate on local sources of instability, which often are linked to ruling parties’ refusal to give up power despite losing elections. Regional states – including those discussed below – have endured on-and-off political tensions since the 1990s, so far without sliding back into secessionist wars. But the political space for avoiding more serious crises is narrowing, and the EU must engage intensively to ensure it does not entirely vanish. This will play out differently in each context but at its core the EU should seek to impose meaningful financial costs on, and slow down the pace of EU accession for actors who violate basic norms, and in particular on parties that obstruct a peaceful transfer of power.

Macedonia

The risk of a serious crisis is highest in Macedonia. National elections in 2016 failed to restore stability after a period of political turmoil and sporadic violence. The incumbent right to far-right VMRO-DPMNE party has refused to cede power to a majority coalition of parties led by the Social Democratic SDSM party. A central point of contention is the SDSM’s willingness to make some political concessions to the Albanian minority, which VMRO claims threaten the state’s existence. This invalid claim has resulted in daily anti-Albanian rallies in the capital, Skopje, as well as in growing alienation among ethnic Albanians. While the Macedonian Albanian minority’s leaders generally have remained committed to working within Macedonia’s political structures since the country came close to civil war in 2001, the current crisis could undermine this uneasy bargain.

Civil society groups have called for targeted sanctions against senior VMRO officials, and the European Parliament’s rapporteur has echoed these calls. The EU should use the threat of possible sanctions to press the VMRO to accept its electoral defeat and play the role of responsible opposition. Leaders of the European People’s Party (EPP), of which VMRO is a member, should use their contacts in Skopje to insist that VMRO stop blocking the transfer of power; if it does not the EPP should consider suspending VMRO.

Kosovo

The political climate in Kosovo has been poisonous since the ruling PDK party refused to cede power after losing elections in 2014. The nationalist opposition party – VV – has responded with public protests and accusations that the PDK is too generous to the ethnic Serb minority. The PDK subsequently reached a power-sharing arrangement with another part of the opposition, the centrist LDK, though this political deal failed to bridge deeper societal divides. While the EU previously coaxed Belgrade and Pristina into constructive talks, relations have worsened and there were tensions this winter over a Kosovo Serb plan to build a wall in the divided city of Mitrovica. Although EU officials keep a close watch on the situation, inter-ethnic tensions are liable to recur if the PDK and opposition exploit them as part of their standoff.

Domestic and international civil society groups have launched a dialogue between the PDK and opposition, and the EU should continue to support this. In particular, it should encourage these civil society efforts to bring ethnic Serb minority parties and representatives into the dialogue, while using its leverage with Belgrade to persuade Serbia not to obstruct the process.

Bosnia and Herzegovina

BiH potentially faces a decisive test of its sustainability as a state in 2018-2019. The country could be unable to replace the current legislature and executive when their terms expire in October 2018. The constitutional court has struck down elements of the electoral law, and all major Bosniak, Croat and Serb parties will have to agree on amendments to the law if state-wide polls are to take place next year. Given the polarisation of BiH politics, there is a significant danger that this will prove impossible.

Failure to hold elections in 2018 would result in the state’s gradual paralysis. In a worst-case scenario this would allow Republika Srpska to press anew for its secession from the federal state. The EU, supported by BiH’s neighbours Croatia and Serbia, should use the leverage of the accession process and related assistance to push all sides to amend the electoral law as quickly as possible, and emphasise its long-term focus on the country by, for example, committing to keep in place EUFOR, the small EU-led peacekeeping force, for as long as necessary.