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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
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

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.