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Bosnia: State Institutions under Attack
Bosnia: State Institutions under Attack
Table of Contents
  1. Overview

Bosnia: State Institutions under Attack

Bosnia faces its worst crisis since war ended in 1995. Violence is probably not imminent, but there is a real prospect of it in the near future unless all sides pull away from the downward cycle of their maximalist positions.

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I. Overview

Bosnia faces its worst crisis since the war. State institutions are under attack by all sides; violence is probably not imminent but is a near prospect if this continues. Seven months after elections, there is no state government and little prospect for one soon. The authorities of the larger of the entities, the Federation, were formed controversially – a main state institution said illegally – in March and are disputed by Croats, who have created a parallel Croat National Assembly. The other entity, Republika Srpska, has called a referendum that could provide support for a Serb walkout of Bosnian institutions. With such trends, it is all too easy to imagine Bosniak parties overseeing a failed state whose institutions Serbs and Croats have abandoned. Compromises are needed so every Bosnian side can claim enough victory to justify retreat from the brink. The international community needs to step back from over-involvement in local politics to calibrate goals to a realistic appraisal of diminished powers and best guarantee stability. Then work needs to begin to create a context for renewing Dayton and achieving EU membership.

All involved share blame for the crisis. Two rival Croat Democratic Union parties (HDZ, HDZ 1990) that represent most of the Croat population, violated the Federation constitution by blocking formation of governments and refusing to send delegates to the entity’s House of Peoples from the four cantons they control. The two HDZs and the biggest winners of the October 2010 elections, the Social Democratic Party (SDP), all rejected reasonable internationally-brokered coalition proposals. The SDP then formed a Federation government in violation of the entity constitution and against the advice of the state-level Central Election Commission (CEC). The HDZs also chose a dangerous moment to create a Croat Assembly. The RS, in particular President Dodik, provocatively called a referendum on laws imposed by the High Representative, Bosnia’s international governor, especially regarding the state court and prosecutor, issues outside RS jurisdiction. Dodik’s divisive, nationalistic speech at the RS National Assembly called into question his commitment to reconciliation and a multi-ethnic Bosnia.

On 27 March, the High Representative suspended the CEC ruling annulling formation of the Federation authorities. That suspension, which had the consequence of disrupting the normal appeal process, has undermined state bodies – most directly the CEC – and the rule of law. It would be further detrimental if the harm were compounded by an attempt to annul RS’s referendum decision or to impose sanctions on Serb officials, not least because the attempts would likely be defied and make a referendum even more destabilising.

The EU has lost credibility due to its inability for the past nine months to strengthen its delegation in Bosnia and give a new head – who is yet to be appointed – adequate authority and powers to vigorously direct international policy. Virtually all international institutions in Bosnia have lost authority; many, including the Office of the High Representative (OHR), are seen as favouring one side or party. Local leaders demand support from OHR and state institutions alike and ignore rulings that go against them. There is no broadly respected authority in the country, only regional or partisan champions.

Since Yugoslavia broke up, Bosniaks, Croats and Serbs have had three conflicting views on what kind of a state they can share. According to former Slovenian president Milan Kučan, a close observer, “these three concepts never really met, let alone reconciled … then these three concepts were turned into war aims, but the war itself never really ended; it was only interrupted by the Dayton peace agreement”. Dayton created a loose union in which the two entities retained most governing competencies, and important state decisions required consensus of the three major ethnic groups; many posts were assigned by ethnic quotas. This system soon encountered obstruction from nationalists; as an emergency measure, the international community endowed the High Representative with broad powers to keep the state running. Since then, it has supported further centralisation and less consensual decisions, hoping to make the state more functional. This in effect promoted the Bosniak vision at the expense of the Serbs and Croats. It also made Bosnia reliant on regular interventions by High Representatives.

The Federation government crisis and the RS referendum expose two sides of a general, Bosnian problem. In the Federation, community rights and majority rule collide. In RS, the contest is over the international community’s role in governing Bosnia and the balance between state and entity prerogatives. Both represent assaults on the vision of Bosnia’s future offered by OHR and accepted by most Bosniak parties. That vision would guarantee that the state could not be sabotaged or paralysed by ethnic conflict. Yet, most Croats and Serbs reject it.

To resolve half of the immediate crisis and form non-contested Federation authorities:

  • the High Representative should lift his suspension and allow the CEC decision to take effect; and
     
  • the Federation House of Peoples should meet in full composition, elect the president and, with the House of Representatives, name a government that complies with the entity constitution; the president and government should only transact urgent business until they have been officially inaugurated;

To resolve the other half of the immediate crisis:

  • the RS National Assembly should retract its decision to hold a referendum; if the referendum goes ahead, President Dodik should publicly rule out any unilateral acts challenging the Bosnian state court (the Court of Bosnia and Herzegovina), such as withdrawing Serb representatives or rejecting its jurisdiction.


​​​​Even though the situation is deeply troubling, the international community should avoid hasty decisions that could deepen the crisis and push the parties to maximalist positions. This is not the time to try to micro-manage the crisis with technical measures or sanctions. Instead, the 9 May UN Security Council discussion on Bosnia and the 13 May European Foreign Affairs Council should be used to launch a strategic rethink of international policy. This should culminate before the planned mid-June RS referendum. Specifically:

  • the international community should convene a high-level conference to set its goals in Bosnia, reconfirm its commitment to the Dayton Peace Agreement, remove the High Representative from local politics, develop plans to relocate his office outside Bosnia and give the EU the capacities to become a leading actor

 

Sarajevo/Istanbul/Brussels, 6 May 2011

Report 232 / Europe & Central Asia

Bosnia’s Future

While the physical scars of the 1992-1995 Bosnia war have healed, political agony and ethnic tension persist. Real peace requires a new constitution and bottom-up political change.

Executive Summary

Bosnia and Herzegovina (BiH, or Bosnia) poses little risk of deadly conflict, but after billions of dollars in foreign aid and intrusive international administration and despite a supportive European neighbourhood, it is slowly spiralling toward disintegration. Its three communities’ conflicting goals and interests are a permanent source of crisis, exacerbated by a constitution that meets no group’s needs. The political elite enjoys mastery over all government levels and much of the economy, with no practical way for voters to dislodge it. The European Union (EU) imposes tasks BiH cannot fulfil. A countrywide popular uprising torched government buildings and demanded urgent reforms in February 2014, but possible solutions are not politically feasible; those that might be politically feasible seem unlikely to work. Bosnia’s leaders, with international support, must begin an urgent search for a new constitutional foundation.

The international project to rebuild Bosnia has had success: war’s physical scars are largely gone, and the country is peaceful. The political agonies, however, show the intervention’s limits. Years of well-intentioned reforms, imposed or urged, have left a governing structure leaders circumvent, ignore or despise. May’s floods left scores dead and thousands homeless, exposing the price of poor governance. With growing frequency, Bosnians ask the questions that preceded the 1992-1995 war: shall it be one country, two, or even three; if one country, shall it have one, two or three constituent entities, and how shall it be governed?

The heart of the problem is in Annex 4 to the Dayton Peace Agreement, known as the constitution (and in several changes imposed by courts and international officials). It defines BiH as a state of two entities, in effect but not explicitly federal, but also the state of three constituent peoples (Bosniaks, Croats, Serbs), and yet, simultaneously, of all citizens. A suffocating layer of ethnic quotas has been added, providing sinecures for officials increasingly remote from the communities they represent. The tensions created by constitutional schizophrenia are pushing BiH to the breaking point. A new design is needed: a normal federation, territorially defined, without a special role for constituent peoples, but responsive to the interests of its three communities and the rights of all citizens.

The state administration’s need to reform is made acute by a 2009 decision of the European Court of Human Rights (ECtHR) that in effect requires BiH to change the ethnicity-based way it chooses its chief executive and part of its legislature. Existing proposals try to squeeze the constituent peoples into an ostensibly ethnicity-blind structure on top of which a complicated network of indirect elections would allow party leaders to choose the executive with as little democratic input as possible. The EU and the outside world support this tinkering with Dayton to satisfy the decision, though such proposals have manifestly failed. Bosnians need to rebuild their political structure from the bottom up.

There is no consensus on where to start, but Bosnia may have to break from its political system based on constituent peoples and their rights. Crisis Group has not reached this conclusion lightly. It reflects long experience and observation that no one has been able to frame a broadly attractive vision on the existing flawed basis. With stresses and frustrations accumulating in all communities, Bosnia must conceive new foundations to survive. Agreement may take years and much experimentation and debate, but the search should begin.

BiH is home to three political communities: those primarily loyal to the Bosnian state, usually but not always Bosniaks; those loyal to Republika Srpska (RS), usually Serbs; and those desirous of Croat self-government, usually Croats. Giving the Croats what they want, their own entity to make a three-entity Bosnia, is absolutely rejected by Bosniaks. Building virtual representative units for the three communities, possibly with new emphasis on municipalities as basic building blocks, is intellectually plausible but requires a leap of faith few seem ready to take. A purely civic state is inconceivable to Serbs and Croats.

Neither leaders nor civil society have deeply explored alternatives to three constituent peoples in two entities; any consensus would take time. Nevertheless, the goal should be clear. The head of state should reflect Bosnia’s diversity, something a collective does better than an individual. The same body could be the executive government. Some decisions should require consensus, others a majority. All three communities should be represented, not necessarily in equal numbers. There should be no ethnic quotas; representation should reflect self-defined regions and all their voters. Poorly performing, unnecessary state agencies and ministries should be slimmed or abolished, with powers reverting to the entities; but the state would need new ministries and agencies required for EU membership. The ten cantons in the larger of BiH’s two entities, the Federation (FBiH), are an underperforming, superfluous layer. They could be abolished, their powers divided between the municipalities and the entity government.

Political culture is part of the problem; an informal “Sextet” of party leaders in effect controls government and much of the economy. A multi-ethnic coalition persists, election to election, with only minor adjustments. Membership is earned by winning opaque intra-party competitions in which voters have little say. Change in this system can only come from within: Bosnians should join parties and participate in genuine leadership contests. Sextet power is further buttressed by control of hiring, investment and commercial decisions at state-owned firms, a situation that chokes private investment and growth.

Bosnia is unimaginable without the work of international officials who did much to shape political institutions and implement peace, but the international community has become more obstacle than help. BiH is trapped in a cycle of poorly thought-out, internationally-imposed tasks designed to show leaders’ readiness to take responsibility but that put that moment forever out of reach. The only way to encourage leaders to take responsibility is to treat the country normally, without extraneous tests or High Representatives. The EU could signal a new start by stating it will receive a membership application – the first of many steps on the long accession road. It should then be an engaged, not over-didactic partner in Bosnia’s search for a way to disentangle the constitutional knot.