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Implementing Equality : The “Constituent Peoples” Decision in Bosnia & Herzegovina
Implementing Equality : The “Constituent Peoples” Decision in Bosnia & Herzegovina
Table of Contents
  1. Executive Summary
The Western Balkans: Fragile Majorities
The Western Balkans: Fragile Majorities
Report 128 / Europe & Central Asia

Implementing Equality : The “Constituent Peoples” Decision in Bosnia & Herzegovina

In July 2000, the Constitutional Court of Bosnia & Herzegovina made an historic ruling requiring the two entities, the Federation of BiH and Republika Srpska (RS), to amend their constitutions to ensure the full equality of the country's three “constituent peoples” throughout its territory.

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Executive Summary

In July 2000, the Constitutional Court of Bosnia & Herzegovina made an historic ruling requiring the two entities, the Federation of BiH and Republika Srpska (RS), to amend their constitutions to ensure the full equality of the country’s three “constituent peoples” throughout its territory.

This ruling offers a probably unrepeatable chance to push the Dayton Peace Accords (DPA) to their limits and to permit BiH to become a functional multinational state. As it stands, the Dayton model of three constituent peoples and two entities is inherently unstable.  It can be pushed in one of two directions: towards recognising the right of the third and smallest people, the Croats, to have their own mini-state, or towards making both entities truly and effectively multinational.  The “constituent peoples” decision represents the best means to reform the existing entities within the Dayton architecture and to move Bosnia in the second direction. 

Opponents of effective Bosnian statehood quickly denounced this decision as an effort to overturn the DPA.  Having succeeded in delaying serious debate about implementation for a year and a half, these factions are now determined to protect their fiefdoms by diluting the consequent reforms to the greatest possible extent. 

Supporters of an integral Bosnian state, by contrast, hailed the Court’s decision as a political and constitutional watershed, and have urged the domestic authorities to agree or, if necessary, the international community to impose far-reaching reforms that would improve upon the Dayton structures.

Since January 2001, the High Representative, the Council of Europe and several Western capitals have nudged the entities towards considering and drafting the constitutional changes necessary to implement the Court’s decision.  This process included the establishment of multinational constitutional commissions attached to the entities’ legislatures, the engagement of political parties in drafting proposals of their own, consultations with international constitutional experts, a period of public debate, inter-party negotiations and, finally, a month of intensive haggling in the Office of the High Representative (OHR). 

The parties struck a political deal in Sarajevo on 27 March 2002, agreeing a package of precepts and principles to be embodied in both entities’ constitutional amendments.  Having superintended the marathon bargaining sessions, the High Representative, the U.S. Ambassador and the Spanish Ambassador (representing the EU presidency) praised the parties for having had the courage to compromise, and swore to see that the Sarajevo Agreement would be translated faithfully into workable amendments.

While this agreement did not represent the best possible interpretation of the Constitutional Court’s ruling, or a complete catalogue of all the required amendments, it offered an acceptable framework based on compromise – until now a dirty word in Bosnian politics.  Unfortunately, the honeymoon has so far proved less happy than the wedding.  The RS party leaders who had signed the agreement returned to Banja Luka to preside over the passage of a set of amendments by the National Assembly (RSNA) that violated the agreement in several places, added caveats and ‘minor’ changes in others, and introduced new amendments either contrary to the spirit of the Court's decision or – in some instances – to the DPA itself.   

Even more brazen than the amendments themselves was the manner in which the speaker of the RSNA forced them through: over the objections of Bosniak and Croat members whose “constituent” status they were meant to safeguard, and in the face of ineffectual hand-wringing on the part of OHR representatives. 

Acceptance of the RSNA amendments would mean abandoning this opportunity to remodel the entities and to bring Bosnia closer to effective statehood.  It would confer a bogus stamp of multinational legitimacy upon the RS without actually ensuring that the Constitutional Court’s demand for equal rights throughout the country was realised. 

Moreover, it would destabilise the position of the non-nationalist Alliance for Change coalition in the Federation, exposing it to accusations of treachery from Bosniak and Croat opposition parties for having signed up to a failed pact. By compromising, the Alliance parties hoped to make a start on ensuring national equality in the entities while showing that Bosnia was ready to manage its own affairs.  If the international community allows these parties to be shown up as having miscalculated on both counts, it will help to return their nationalist opponents to power.

This report recounts the origins of the “constituent peoples” case and the scope of the Court’s decision.  It then describes the unprecedented debate on fundamental aspects of the DPA that has occurred in both entities since December 2001.  It analyses the Sarajevo Agreement, the amendments enacted by the RSNA and the draft amendments awaiting debate in the Federation parliament in terms of the guarantees needed to ensure equal rights for Bosnia’s “constituent peoples” and “others”.   Finally, it analyses changes not specifically regulated by the Sarajevo Agreement, but mandated by the decision of the Constitutional Court.

ICG believes that “symmetry in substance” requires both entities to have legislative bodies empowered not only to object to laws that violate “vital interests”, but also to participate in their revision.  This means endowing the RS with a second chamber, even if its competence need not extend beyond legislation affecting such “vital interests”  It will also be essential to base representation of the “constituent peoples” in the RS government on no lesser standard than that agreed in Sarajevo.  To accept anything less would legitimise ‘ethnic cleansing’.  Nor would it be just to exclude Bosnia’s “others” from government or the bodies mandated to safeguard “vital interests”.  Implementation of the “constituent peoples” decision in the entities’ courts, law enforcement agencies and local governments is no less important than securing equitable representation for all nations in their cabinets and parliaments.

Neither the High Representative nor the Peace Implementation Council (PIC) to which he is accountable should allow themselves to be deterred by Serb and Croat extremists into accepting half-baked or unjust sets of amendments.  Although the Federation looks set to adopt a set of amendments fully in line with both the Court’s decision and the Sarajevo Agreement, pressure or imposition could prove necessary in that entity – as it is now required in the RS.  In order to overcome resistance, however, any imposition will need to be accompanied by mobilisation of the full arsenal of international weapons and inducements.  Otherwise, constitutional amendments imposed upon dissenting parties will not stick, and Bosnia will remain a dysfunctional and resentful Western dependency.

Sarajevo/Brussels, 16 April 2002

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.