Constitutional Engineering in Post-Dayton Bosnia and Herzegovina

Abstract

This article reflects on the dynamics associated with state building in post-conflict Bosnia and Herzegovina (BiH) with a particular focus on the role of external agency. The debate over constitutional reform has featured prominently in BiH since the early 2000s. The objective of this reform was to transform Dayton into a functional institutional framework that prepared the country for both international withdrawal and EU integration. Based on a detailed analysis of two international initiatives launched in 2005 and 2009 this article analyses the reasons why constitutional engineering in post-Dayton BiH failed. More specifically, the article argues that this reform failed as a result of various shortcomings including international divisions; a democratic deficit inherent in the process; and the neglect of local conditions (including conflicting notions of the future form of the state by both local and external actors).

ACKNOWLEDGEMENTS

This articles draws on fieldwork conducted in BiH in 2007 thanks to the financial support of UACES (University Association for Contemporary European Studies). Further interviews with local and external actors were conducted in June 2010 when the author was a political adviser to the Spanish Embassy to BiH during the EU presidency in 2010. The views expressed do not represent the views of the Spanish government and are those of the author alone.

Notes

Politics based on the belief that ethnic differences should be explicitly recognized; considered important for divided societies emerging from war. Arend Lijphart, Democracy in Plural Societies: A Comparative Exploration, New Haven, CT: Yale University Press, 1977.

Paddy Ashdown, Swords and Ploughshares: Bringing Peace to the 21 ^st Century, London: Weidenfeld & Nicolson, 2007; Oliver P. Richmond and Jason Franks, ‘Between Partition and Pluralism: The Bosnian Jigsaw and an Ambivalent Peace’, Southeast European and Black Studies, Vol.9, No.1-2, 2009, pp.17–38.

See, for example, Roland Paris, At War's End: Building Peace after Civil Conflict, Cambridge: Cambridge University Press, 2004.

James C. O'Brien, ‘The Dayton Agreement in Bosnia: Durable Cease-Fire, Permanent Negotiation’, in I. William Zartman (ed.), Peace Versus Justice: Negotiating Forward- and Backward-Looking Outcomes, Lanham, MD: Rowman & Littlefield, 2004, p.109.

The concept of state-building constitutes a particular approach to peacebuilding in which the emphasis is placed on designing, strengthening and legitimatizing institutions. More specifically, it refers to the efforts undertaken by external and/or national actors ‘to reconstruct, or in some cases to establish for the first time, effective and autonomous structures of governance in a state or territory where no such capacity exists or where it has been seriously eroded’. Richard Caplan, International Governance of War-Torn Societies: Rule and Reconstruction, Oxford: Oxford University Press, 2005, p.3. Constitutional reform may represent one of the key activities of state-building.

Oliver P. Richmond, ‘UN Peace Operations and the Dilemmas of the Peacebuilding Consensus’, International Peacekeeping, Vol.11, No.1, 2007, pp.83–101; Richmond and Franks (see n.2 above).

It was believed among EU officials that the prospect of EU membership would provide incentives for local leaders to set aside their differences and work together.

Roberto Belloni, ‘Peacebuilding and Consociational Electoral Engineering in Bosnia and Herzegovina’, International Peacekeeping, Vol.11, No.2, 2004, pp.334–53.

Donald Horowitz, ‘Making Moderation Pay: The Comparative Politics of Ethnic Conflict Management’, in Joseph V. Montville (ed.), Conflict and Peacemaking in Multi- Ethnic Societies, New York: Lexington Books, 2001, p.471.

Belloni (see n.8 above).

Council of Europe, ‘Bosnia and Herzegovina's Application for Membership of the Council of Europe’, Opinion 1, Doc. 9288, 5 Dec. 2001.

See, Venice Commission, ‘Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative’, Strasbourg: European Commission for Democracy through Law, 11 Mar. 2005, para.43. The Venice Commission Opinion was issued in response to a Council of Europe request in 2004 to report on Bosnia's progress in compliance with the Council of Europe's post-accession requirements, which included constitutional changes. The opinion became a frame of reference in 2005–06, but the legitimacy conferred to this document has waned overtime.

‘Governance Structures in Bosnia and Herzegovina: Capacity, Ownership, EU Integration, Functioning State’, Sarajevo: Foreign Policy Initiative BH, Apr. 2007 (at: www.vpi.ba/eng/content/documents/Governance_Structures_in_B&H.pdf).

Under this scenario, the House of Representatives would increase the number of deputies; including three seats reserved for members of the group of ‘others’.

See Venice Commission, ‘Opinion on Different Proposals for the Election of the Presidency of Bosnia and Herzegovina,’ Opinion 374/2006, Strasbourg: European Commission for Democracy through Law, 20 Mar. 2006.

Ibid. The members of the presidency represent primarily their respective nations instead of their entities (creating a problem of representation). Given that entities are not fully mono-ethnic, it deprives a part of the population in each entity from representation in the presidency. See, Florian Bieber, Post-War Bosnia: Ethnicity, Inequality and Public Sector Governance, Basingstoke: Palgrave Macmillan, 2006.

This provision allows just 10 members of the RS in the House of Representatives to block any decision taken in the parliament.

The ‘Dayton Project: Programme for Civil Dialogue in B-H’ was established in early 2005 as a platform for the constitutional negotiations, funded primarily by the Norwegian, Swedish and Swiss governments.

The agreement was signed by SDP, Bosniak party SDA (Party for Democratic Action), Serb parties SNSD, SDS (Serb Democratic Party) and PDP (Party of Democratic Progress) and the Croat HDZ.

The RS National Assembly passed a resolution in April 2009 supporting a referendum on laws enacted by the High Representative. This development was represented as a direct threat to the state authority and raised inter-ethnic tensions.

Some of these conditions included a positive assessment of the situation in BiH by the Peace Implementation Council based on full compliance with the Dayton Peace Agreement (see Peace Implementation Council, ‘Communique of the Steering Board of the Peace Implementation Council’, Sarajevo: PIC Steering Board Political Directors, 25 June 2008). The Prud Process – which also involved discussions on constitutional changes – was spearheaded by the three main ethnic-based parties' leaders; namely SNSD leader Milorad Dodik, HDZ leader Dragan Cović, and SDA leader Sulejman Tihić. They convened outside public institutions with limited OHR involvement. Notwithstanding an initial agreement to create new administrative units, the effort failed to attract the support of key stakeholders and collapsed into accussations of ‘selling out’.

The United States has generally been reluctant to engage in direct negotiations with SDS because it was founded by war crimes indictee Radovan Karadžić in 1990 and remained a stalwart supporter of the Serb nationalist cause. During the April Package, however, the US engaged with SDS's leader Dragan Čavić given his success in keeping SDS hardliners at bay and due to his willingness to engage more actively in the reform process. Čavić was replaced by Mladen Bosić in 2006 following the party's failure in the 2006 elections.

For a detailed discussion on these dynamics during the April Package, see Sofía Sebastián, ‘State Building in Divided Societies: Constitution-Making in Bosnia and Herzegovina,’ Journal of Intervention and Statebuilding, Vol.4, No.3, 2010, pp.323–44; Sebastian, ‘The Role of the EU in the Reform of Dayton in Bosnia-Herzegovina’, Ethnopolitics, Vol.8, No.3, 2009, pp.341–54.

An international official argued in a personal interview that the EU did not want to present any proposal fearing that obstruction over the Butmir Process would ultimately block the closure of the OHR (a longstanding EU goal). Another point of disagreement included the exclusion of SDS from the negotiations.

Interview by author with Serb officials and Western diplomats, Sarajevo, May–Jul. 2007.

Cited in Nikola Tomić, ‘BiH will Fall Apart if West Continues with Pressures’, Danas, 12 Oct. 2009 (in electronic bulletin BiH Media Round-up, 12 Oct. 2009, pp.1–2); see also ‘Republika Srpska's Dodik Says He's Only Supporting the Constitution,’ Radio Free Europe, Radio Liberty, 14 Oct. 2011 (at: www.rferl.org/content/interview_milorad_dodik_bosnia_republika_srpska_politics/24360012.html).

As an HDZ official argued in a personal interview, ‘What we want is that if we keep entity voting, then let's make it useful for us too’.

For further details see Sebastián (see n.23 above).

The SDA was also confronted with outbidding dynamics from the SBiH during the April Package. Subsequently, the SDA leader Tihić lost the presidency post to the SBiH leader Haris Silajdžić in the 2010 October elections.

Sumantra Bose, Bosnia after Dayton: Nationalist Partition and International Intervention, New York: Oxford University Press, 2002, p.259.

For a discussion on the lack of policy accountability see, David Chandler, Faking Democracy After Dayton, London: Pluto Press, 2000; Chandler, ‘Introduction: Peace without Politics?’, International Peacekeeping, Vol.12, No.3, 2005, pp.307–21.