Abstract
The transition to democracy in Bosnia and Herzegovina has proven extremely troublesome, as it overlapped with the complex post-conflict reconstruction process. Furthermore, the Dayton Peace Accords have provided Bosnia and Herzegovina with a rather incoherent institutional framework. In fact, the peace agreements created an asymmetrical confederation of highly autonomous, ethnically based entities coupled with weak central institutions. This situation has generated fragmentation and exclusion of minorities rather than reconciliation, triggering the worrying rise of a divisive national rhetoric. Consequently, reform attempts have been hampered by the defence of (perceived) national interests by different ethnic groups. Moreover, the international community has failed both in driving the reform process and in fostering talks to help local leaders achieve an agreement. In such a context, the much-needed constitutional reforms to establish a more efficient and cohesive governmental structure are still far from being achieved.
Unlike political and economic reforms in any other Central and Eastern European country, those in Bosnia and Herzegovina (hereafter Bosnia) have taken place in an immediate postwar context. Democratic reforms have subsequently been part and parcel of the implementation of a vast post-conflict reconstruction programme. The latter has been a complex, overarching and multidimensional process encompassing efforts to simultaneously improve security (restoration of law and order), and political (governance), economic (rehabilitation and development) and social conditions (justice and reconciliation). Additionally, the process has included efforts to establish from scratch effective power-sharing institutions (state-building process), which presumably would alleviate the insecurity dilemmas of all three ethnic groups.
Twelve years after the signing of the Dayton Accords certain accomplishments have been achieved in the country. The fragile ceasefire has turned into a sustained peace, Bosnian society is demilitarised and freedom of movement is restored. Massive emergency assistance helped the country return to normalcy and international reconstruction programmes brought about the completion of the rehabilitation process. Presidential and parliamentary elections have been regularly organised and ‘shifts’ in power have taken place without major problems.
Yet it is conventional wisdom that an electoral democracy is quite different from a liberal constitutional democracy [20]. The holding of free and democratic elections does not necessarily tell us much regarding either the political stability of the country in question or the success of its institution-building process. Indeed, during the last quarter of 2007, Bosnia went through what has been termed as the worst political crisis since the end of the civil war, as the Bosnian Serbs openly threatened to boycott all state institutions if the High Representative (HR) did not back away from his intention to reform the country's decision-making system [19]. 1 The latest European Commission report on Bosnia's progress towards meeting the EU membership criteria is equally telling of the country's persistent problems. Among other things, it states that ‘nationalist rhetoric from political leaders from all the constituent peoples, challenging the Dayton/Paris Peace Agreement and therefore the constitutional order, has been common’ [5]. Daily, an increasing number of observers remark that the Dayton political configuration is no longer sustainable.
The HR reforms aimed merely at stopping the three ethnic groups from utilising the practice of not attending sessions of the Council of Ministers in order to block the adoption of decisions.
The present article expresses the viewpoint that Bosnia's political framework has to be reconsidered. The first section explains the expediency of implementing comprehensive political reforms. The second elaborates on the constitutional talks that took place during April 2005 through June 2007 in order to identify the approaches of the involved actors as well as reasons for the absence of agreement so far. Finally, the last section discusses the main challenges that the international community confronts in its endeavour to assist the country in streamlining its political system.
The expediency of constitutional reforms
While analysts disagree over the assignment of responsibility for the current political impasse in Bosnia, 2 there is near unanimity in the argument that many of the country's problems stem from the content of the Dayton Accords that terminated the war. 3 The peace agreement attempted to reconcile divergent interests ranging from demands for Bosnia's partition along ethnic lines to calls for the preservation of Bosnia's integrity. Indeed, the product of the negotiations in Ohio was a tentative step and a delicate compromise between three different approaches to conflict resolution: partition [11], federalism [25] and consociationalism [13].
There are at least three trends in assigning responsibility for Bosnia's political problems. The first and most prominent trend highlights the role of the ‘spoilers’; that is to say, the local political leaderships who obstruct the implementation of the peace process. Others point to the role of external factors such as Serbia and Russia, whose policies are viewed as contributing to the destabilisation of the country. Within this trend we can also identify those who advocate a greater role for the EU and the United States. Finally, the third trend ascribes primary responsibility for Bosnia's problems to the way the international community governs the country through the institution of the Office of High Representative. For an interesting discussion see inter alia Chandler [3].
For a somewhat ‘heretical’ approach defending Dayton as an underexploited framework of conflict resolution, see Begić [2].
Bosnia was designed as a loose asymmetrical confederation with multiple power-sharing mechanisms at several layers of executive and legislative power. On paper it remained a united country that was, nevertheless, divided into two legal entities, the Croat-Muslim Federation (the Federation) and Republika Srpska (RS). All government functions and powers were relegated to the entities, with a few notable exceptions that remained with the country's central institutions. 4 In fact, both entities were vested with extensive state prerogatives that included the right to have their own separate armed forces and to develop special parallel relationships with neighbouring states. On the other hand, the country was deprived of any state-level court (besides the constitutional court) and became dependent on the entities for its own finances.
These were foreign policy, foreign trade, customs, monetary policy, inter-entity communication, transportation and law enforcement.
The country's central institutions comprised a tripartite presidency, a council of ministers and a bicameral legislature. Not only did the Dayton Accords stipulate the existence of ethnic proportionality within these institutions, but they also determined the entity of origin of ethnic representatives in the presidency and the House of Peoples (the upper house of Bosnia's legislature). In this way, the peace agreement unintentionally privileged the formation of ethnically orientated parties. Furthermore, it implied the exclusion of members of minority communities (e.g., Roma and Jews) as well as the Serbs of the Federation and the Croats and Bosniaks (Muslims) of the RS from representation in the country's most important institutions. Indeed, the provisions concerning the composition of the presidency and the House of Peoples are in sharp contravention with Protocol 12 of the European Convention on Human Rights, and three cases have already been taken to the European Court of Human Rights [17]. Above all, Bosnia's fragmentation into ethnic zones was accentuated by the fact that the three ethnic communities were awarded the right to veto any decision or law, at both executive and legislative levels, that would conflict with their perceived national interests.
At the entity level, while the RS was designed as a centralised State, the Federation was organised along the same lines as the State in which it was established, blending together high levels of federalism with consociationalism. Most government functions in the Federation were relegated downwards to ten cantons that were vested with their own constitutions, governments and assemblies. What is more, the operation of the central federal institutions, within the few domains of their competencies, was complicated by substantial power-sharing provisions (i.e., assured ethnic representation and the veto right of both communities). Hence, the Federation was as dysfunctional and vulnerable to paralysis as the State in which it was established.
The Dayton-inspired political system is cumbersome and financially unsustainable. In a country of only 3.9 million people, it makes little sense to preserve 14 governments and corresponding legislatures—one at the state level, two at the level of the entities, one for the district of Brčko and 10 at the cantonal level within the Federation—each of them maintaining its respective bureaucratic structure. Not only do Bosnia's governmental expenses amount to 50% of the country's GDP, but the operation of such a large government also duplicates functions and inefficiencies [10]. To illustrate, the fragmentation of health and education across cantons and entities renders their services expensive in terms of unit costs and hinders the development of economies of scale. Segmented health and education systems are, additionally, inequitable systems because the existence of large differences in revenue among the cantons is projected on their social expenditures [18].
Moreover, the fact that Bosnia maintains multiple layers of government that are simultaneously endowed with rigid power-sharing mechanisms has played into the hands of local leadership. The peace settlement has been deficient in both integrative elements (i.e., joint common institutions) and electoral and political incentives for cooperation, and thus Bosnian nationalists on all sides have come to view the peace process as the continuation of war by other means [22]. Although none of the ethnic groups is currently headed by those people who led the country into civil war, their successors have not abandoned the divisive nationalistic rhetoric. The implementation of most reforms has been hindered by attempts of one or more ethnic groups to protect its perceived national interest. Altogether, intransigent positioning and voting along ethnic lines—reflecting an absence of political will and divergent national perspectives on the country's future—have impeded progress in both executive and legislative work. In this respect, it is no surprise that obstructionists have emerged as ‘defenders’ of the Dayton framework that provides entities and cantons with certain state-like prerogatives.
To make the peace process work and to secure the implementation of much-needed reforms, the international community has looked to its High Representative in the country. The latter has been vested since 1997 with the ‘Bonn powers’, the authority to pass laws and decisions at any constitutional level and the power to dismiss any non-cooperative party representative or public official. During the 1998-2005 period, the Office of the High Representative (OHR) adopted 757 decisions effecting the removal from office of 119 persons—including presidents and prime ministers—and the imposition of 286 laws or amendments to laws [19]. Given that the HR reports only to the Peace Implementation Council (PIC)—a biennial assembly of 55 representatives of countries and agencies that is chaired by the HR himself—he has not been accountable to any national institution [12]. Bosnia has turned into an international protectorate under the administration of the OHR, and the latter has evolved into an additional superimposed layer of governance with its own bureaucracy.
The HR's decisions have been aimed at rationalising the country's system of governance and strengthening central institutions through the transfer of competencies from the entity to the State level. The Bosnian central government currently has seven additional ministries, including a ministry of defense with a unified command structure. The state's work is further assisted by the establishment of several key agencies and institutions such as the State Border Service (SBS) and the State Information and Protection Agency (SIPA). Nevertheless, the HR has come under sharp criticism for his undemocratic ‘modus operandi’ that does not conform to European standards of governance [
The constitutional process
Although consecutive HRs have attempted to improve the effectiveness of the country's governance, no State or international organisation openly challenged the peace arrangement during the first post-war years. Indeed, it was only in 2005—that is, a decade after the initiation of the peace process—that several international actors started publicly arguing for the need to revise the country's constitution.
The Council of Europe's Venice Commission suggested on 11 March 2005 that ‘constitutional reform is indispensable since present arrangements are neither efficient nor rational and lack democratic content’ [
By November 2005, interethnic talks had been conclusive on several issues (e.g., transfer of powers from the presidency to the Council of Ministers, relegation of authorities relevant to the EU accession process to the State level). Yet an absence of agreement persisted on questions such as the composition of the presidency and its election procedure [9]. At that time, on the occasion of Dayton's tenth anniversary, the US administration got actively involved, through their embassy in Bosnia, and the entire process became more formal and public [21]. 5 The participants in the talks eventually reached an agreement in March 2006 with respect to four broad constitutional amendments. 6 The first concerned the constitutional inscription of the changes that the HR had so far effected regarding the transfer of competencies from the entity to the State level. It introduced a category of ‘shared competencies’ (between State and entities) for the tax system, the electoral process, the judiciary, agriculture, science and technology, ecology and local self-governance. The second amendment previewed changes in the composition, competencies and procedures of the legislature. It is worth noting here that these changes also touched upon the definition of the ‘vital national interests veto’ that had been frequently abused by the three ethnic groups. The third amendment aimed at transforming the collective presidency into an institution of a single president and two vice-presidents. Finally, the fourth amendment reformed and empowered the Council of Ministers.
The leaders of seven major political parties in Bosnia signed a ‘Commitment to Pursue Constitutional Reforms’. See www.daytonproject.org/PDFs/BiH_Const_Reform_Statement_English.pdf.
For the constitutional amendments, see www.daytonproject.org/publications/printer.php?id=140.
The ‘April package’ of constitutional reforms was supported by the three largest Serb parties—the Serb Democratic Party (SDS), the Alliance of Independent Social Democrats (SNSD) and the Party for Democratic Progress (PDP)—that were content to see that the country's entity structure was not affected by the amendments. The reforms were also endorsed by the Party for Democratic Action (SDA) and the Social Democratic Party (SDP), the largest Bosniak and civic parties respectively. Although both favoured Bosnia's designation as a civic State without any entities or cantons, they settled for a far less ambitious goal out of pragmatism. Lastly, the ‘April package’ was accepted by the two largest Croat parties—the Croat Democratic Union (HDZ) and the Croatian National Union (HNZ)—that acknowledged the need to improve the effectiveness of the country's institutions. At the same time, the constitutional amendments were opposed by the second-largest Bosniak party, the Party for Bosnia and Herzegovina (SBiH) and a fraction of the HDZ that left its party in April 2006 to form the ‘HDZ 1990’. The SBiH argued that the changes were ‘cosmetic’ and ended up endorsing the country's current entity system. As for the HDZ 1990, it claimed that the amendments weakened precisely those institutions in which the Croats had equal representation with the Bosniaks and Serbs (i.e., the presidency and the House of Peoples) and undermined the Croat position in the country [8]. As a result, on 24 April 2006, Bosnia's House of Representatives failed by two votes to approve with a two-thirds majority the constitutional amendments, and the agreement turned into an empty letter.
Owing to the fact that presidential and parliamentary elections were scheduled to take place in October 2006, nationalistic rhetoric was again on the rise, this time consumed with the content of the constitutional reforms. Mirolad Dodik, leader of the SNSD, repeatedly demanded the holding of a referendum on independence for the RS following the example of Montenegro, while Haris Silajdžić, the SBiH leader, promised to his people that if he was elected to the presidency, the RS would cease to exist [
The international community has subsequently made two attempts to bring back constitutional reform. The first was undertaken by the United States in May 2007 and aimed at reviving the ‘April package’. The US initiative concentrated on the SBiH and the SNSD, i.e., the respective winners of the Bosniak and Serb vote in the 2006 elections and the parties with the most divergent positions on the country's future. The American diplomatic effort yielded no result. Not only did those who opposed the ‘April package’ maintain their original objections, but the SNSD also felt that it was being asked to compromise on top of what it had already compromised [21].
In June 2007, Christian Schwarz-Schilling, then HR, undertook an entirely different initiative that intended to separate the process of the constitutional talks from the contents of the reform. In particular, he proposed to begin entirely fresh negotiations within a newly established constitutional commission that would additionally include NGO representatives and interest groups [15]. Schwarz-Schilling's proposal was not supported by the main proponents of the ‘April package’ (SDA, HDZ and SDP), who perceived a broad open-ended process as an annulment of the achievements of earlier constitutional talks. Hence, the HR's initiative did not succeed in re-initiating the constitutional process. In the following months, efforts to implement police reform—a condition for Bosnia's EU accession—have pushed the constitutional reforms to the background.
The challenges ahead
This article has argued that the administrative structure of Bosnia is financially unviable and prone to paralysis and exploitation by rent-seeking elites. The implementation of political reforms is imperative and the exercise of leadership by international actors is essential, as the track record of the Bosnian peace process has demonstrated. However, the international community seems not to know what is the best way to help the country in question. On the one hand, the strategy around the governance of Bosnia as a protectorate has come to an impasse. It has generated much criticism and does not run in parallel with the country's EU perspective. Inasmuch as both the military deployment and the development assistance from international actors have shrunk significantly over time, the HR's imperial style of governance no longer reflected shifting realities on the ground either [19]. As a result, it is no coincidence that the OHR has practically ceased invoking the Bonn powers during the last two years. The international community has instead promoted the country's EU accession as an alternative framework in which political and economic reforms will be embraced. Yet the EU enlargement conditionality presupposes the voluntary cooperation of aspiring Member States, at their own pace, and cannot be used as an instrument for the imminent imposition of reforms [19]. Therefore, while the constitutional reforms are treated as another topic of divisive ethnic politics, the international community has been deprived of any means of pressing the local elites to quickly move towards reaching a compromise. There is an emerging power vacuum in international policies towards the country that is accentuated by fundamental differences of approach and an absence of coordination, not only between the West and Russia but also between the US and the EU. 7 Under such conditions, the local elites have been given the opportunity to manoeuvre between different proposals (e.g., between American and HR initiatives) and pick their favourite offer.
For instance, Maršić and Marko [15] remarked that the US did not coordinate or even consult with the HR prior to their initiative of May 2007.
The constitutional amendments were purposely limited in their reach in order to ensure that every Bosnian political party was on board. The international community believed that more substantial groundbreaking reforms should be attempted at a later stage. Nevertheless, not only were these limited reforms not adopted, they also highlighted the Bosnian parties’ divergent visions of their country. The Bosniaks want a centralised civic State, whereas the Serbs (and to a lesser extent the Croats) want a decentralised federal State [14]. Political reforms towards a more effective structure of government cannot balance between such opposite approaches. This sort of balancing is precisely what the Dayton Accords attempted and failed to deliver. Moreover, the introduction of constitutional reforms in the parties’ electoral politics has further complicated consensus building. Indeed, several Bosnian parties have moved to more hard-line positions than those they originally held once the process started. Consequently, the international approach of incremental multi-staged constitutional amendments has so far not shown how an interparty agreement on comprehensive changes to the country's political structure could be reached. More importantly, subsequent changes of policy direction bring to the surface the international community's lack of strategic thinking concerning Bosnia's constitutional reforms. Meanwhile, time runs out as the mono-ethnic, self-governed RS and cantons become increasingly entrenched.
Altogether, the international community's readiness to quickly address its strategic deficiencies concerning the means and the framework of its policies in Bosnia will be critical for the implementation of constitutional reforms.
Footnotes