Written by Enna Zone Đonlić
Bosnia and Herzegovina was part of the Social Federal Republic of Yugoslavia until 1992. After Slovenia and Croatia declared their independence, the Bosnian parliament called for the Independence Referendum. The Referendum for independence took place on March 1st, 1992. The question of the referendum was; “Are you in favor of a sovereign and independent Bosnia-Herzegovina, a state of equal citizens and nation of Muslims, Serbs, Croats and others who live in it?” With more than 90% of voters answering ‘yes’ following the announcement of results. Following the declaration of independence, Bosnia and Herzegovina faced a rising problem. The Bosnian Serbs, who were supported by the Government of Serbia, began acting aggressively towards the people of Bosnia and Herzegovina. This, thus, created an entrenched desire of the Bosniaks and Croats to gain independence in which would be recognised throughout the international community. If the recognition had not come through on the time, the aggression started by Serbs would be seen as an aggression on the territory and, as a consequence, the international community would have had little place to intervene. On April 6, 1992 Bosnia and Herzegovina’s independence was first recognised by the United States on April 6th, 1992 and was later admitted on May 22 1992 to the United Nations.
After a few months of war in Bosnia, and the evident ethnic cleansing, the international community attempted to reach an agreement between the three parties and negotiate peace. Prior to the Dayton Peace Agreement, there had been few attempts at reaching an agreement between the Bosniaks, Croats and Serbs – but all of them failed due to different reasons. The major reason why an agreement was not reached earlier is that most of the early attempts at a settlement between the three parties did not guarantee them what they were expecting to gain from it. The Serbs, whose main goal was to reach independence, were perhaps the most disappointed with the earlier drafts that attempted to secure peace between them. While negotiations were still ongoing, the fighting in Bosnia continued up until early Fall, where the progressive movement of the Bosnian army onto Serbian territory provoked a cease-fire.
In September, talks in Geneva led to an agreement in which the basis for settlement was a political subdivision of Bosnia into two coequal “entities”, and a territorial split of Bosnia with fifty-one percent under Bosniak-Croat control and forty-nine percent under Bosnian-Serbs control. The United States Assistant Secretary of State, Richard Holbrooke, played a significant role in the settlement and its negotiation process. Negotiation on the peace agreement started on November 1, 1995 at the Dayton Air Force Base, Ohio, US, while the eventual agreement was reached on November 21, 1995. The General Framework for the Peace in Bosnia and Herzegovina was officially signed in Paris on December 14, 1995.
Dayton Peace Agreement (DPA) and Constitution of Bosnia and Herzegovina
Paddy Ashdown said: “The Dayton Peace Agreement was a superb agreement to end a war, but a very bad to make a state.”
The DPA was externally created and signed by the following parties: the president of Bosnia and Herzegovina, Alija Izetbegović; the president of Croatia, Dr. Franjo Tuđman; and the president of Serbia Slobodan Milošević as the representatives of Bosnian Croats and Bosnian Serbs, respectively. Carl Bildt (1996), the first High Representative in Bosnia, stated that “The peace agreement concluded in Dayton and signed in Paris is probably the most ambitious document of its kind in modern history. It sets out not only to end the war, but also to reconstruct – on the basis of the highest standards of international law and principles – a society that has been brutally torn apart.”
The DPA in its structure gave a large authority to the international community, but its historical importance can be viewed from another perspective. For the first time in its history, a constitution for the state was created without the involvement of the People or their voting on it; the existing constitution of Bosnia and Herzegovina is, in fact, Annex 4 of the Dayton Peace Agreement.
According to the constitution, Bosnia is a decentralised state with two entities: the Federation of Bosnia and Herzegovina (Federacija Bosne i Hercegovine– FBiH) under the Croat-Bosniak control and Republika Srpska – RS which is under the control of Bosnian Serbs, and the self-governing administrative unit, formally part of both entities. However, it was under the full international community supervision that this decentralisation and the reciprocal political control of either entity was granted. The Constitution separated power between the executive, legislative and judiciary branches of government. The decentralisation of the Bosnian government is seen through the creation of four levels of governance: 1) the state; 2) entities; 3) cantons: and 4) municipalities.
The Parliamentary Assembly of Bosnia and Herzegovina is the legislative branch of the government. It is a bicameral assembly with two chambers – the Lower house or House of Representatives, and the Upper House or House of Peoples. The House of Peoples comprises 15 Delegates, two-thirds from the Federation (including five Croats and five Bosniaks) and one-third from the Republika Srpska (comprising five Serbs). On the other hand, the House of Representatives consists of 42 members, two-thirds of which are elected from the territory of the Federation, and one-third from the territory of the Republika Srpska.
The Presidency of Bosnia and Herzegovina consists of a representative of each of the three members: one Bosniak, one Croat and one Serb, whom are each directly elected in the entity in accordance with elections laws adopted by the Parliamentary Assembly. The Members of the Presidency shall appoint from their Members a Chair. The Chair of the Presidency has authority to, but is not limited to, undertaking the following actions: the representation of Bosnia and Herzegovina; chairing the sessions of the Presidency; and signing acts resulting from work of the Presidency. A dissenting Member of the Presidency may declare a Presidency Decision to be destructive of a vital interest of the Entity from the territory from which he/she was elected.
The Presidency nominates the Chair of the Council of Ministers, who takes office upon the approval of the House of Representatives. The Chair nominates a Foreign Minister, a Minister of Foreign Trade and other Ministers as appropriate, who also take office upon the approval from the House of Representatives. No more than two-thirds of all Ministers may be appointed from the territory of the Federation.
The constitution also gives power to the entities within the state. Entities have the right to establish special parallel relationships with neighbouring states, consistent with the sovereignty and territorial integrity of Bosnia and Herzegovina. Each Entity may also enter into agreements with states and international organizations with the consent of the Parliamentary Assembly; existing laws may, however, permit the curtailing of such procedure of consent by the Parliamentary Assembly in regard to the agreements reached between entity and external political actors.
Consequently, beside the Presidency, Council of Ministers and Parliamentary Assembly, each entity has a right to its own government, constitution, president and ministers. The Federation of Bosnia and Herzegovina has its own government plus Cantonal governments in each of its ten Cantons. Republika Srpska also established a government with a President of its own, as well as granting the newly created District Brčko its own government through a deeper process of decentralisation.
All of this makes Bosnia and Herzegovina system quite complex and complicated, with a weak central state and strong entities. Consequently, the functionality of the Bosnian state can be described as somewhat dysfunctional due to its complex bureaucratic infrastructure of governance which also brings great costs to the state in regard to its maintenance and survival. We may argue that the DPA made such a state where the political elites play a dominant role in the legislative and executive branches of government such as the Presidency, Parliament and the Council of Ministers.
The political regime that is found within Bosnia is that of a consociational democracy, meaning that rule is monopolised by an elite cartel. We may examine the consociational democracy in Bosnia according to the Arend Lijphart´s four characteristics of a consociational democracy. At first, a government should be led by a grand coalition of the political leaders of all significant segments of the plural society. This means that all relevant groups should be represented within government. This eventually became the case in the Parliamentary Assembly of Bosnia and Herzegovina, which is led by a great coalition of representative of all constitutive peoples in Bosnia. The second characteristic is the existence of the mutual vetoes whose main purpose is protection of vital minority interests. As stated in the constitution of Bosnia and Herzegovina, each member of the Presidency and members of Parliamentary Assembly have a right to veto political decisions, which can thus be used to block any decision that is identified as a threat to vital interest of the Entity from which they are coming from. Third, the proportionality, all groups are adequately represented in the executive, the legislative and judiciary branch of the government. In Bosnia, the Presidency, Upper House of the Parliament, Council of Ministers and Constitutional court show this characteristic through the equal represent number of representatives from each of the ethnic groups. The fourth is reliant upon the acquisition of autonomy, and thus results in the right of self-governance to each group represented in the country. In the Bosnian political system, this self-government is evident on the entity level where the Federation of Bosnia and Herzegovina is controlled by Bosniaks and Bosnian Croats, while Republika Srpska is governed by Bosnian Serbs.
The right of representation of each group across governmental institutions in Bosnia and Herzegovina grants the ability of these groups to defend its vital interest through the use of the veto. In order for any decision to be passed in Bosnia, an agreement between three parties is required. So far, it has not been easy, and some occasions impossible, to reach an agreement amongst all three sides, eventually causing political instability and stagnation in the prosperity of the country. Political unwillingness to take action, implement or adopt documents that are of high importance through the use of the veto was usually defended by the protection of the vital national interest. This veto power is, in fact, one of the major reasons why Bosnia was stagnating on the EU integration process for a long period of time. Mechanism of coordination were created in order to enhance the adoption of the Reform Agenda plan, and by September 2016, Bosnia managed to complete 40% of the whole Reform Agenda plan for 2016-2018. Due to its complicated structure, not all problems could be solved through the establishment of the Mechanism of coordination. Many issues are still sitting on the table and are waiting to be addressed and solved in a sufficient manner, such as the implementation of the European Court of Human Rights final judgment on the Sejdić-Finci case. The implementation of this judgment requires the changing of the Constitution of Bosnia and Herzegovina, particularly that of the aforementioned Constitutional reform.
Taking into account that Bosnia and Herzegovina is a democratic country, it would assume that changing the constitution would not be such an issue- yet it is. When mentioning any reform, especially that surrounding reformation of the constitution, we have to understand that the power of the entity veto plays a significant role. So far, there have been few attempts at changing the Constitution, most notably the so-called April package from the 2006 constitutional reform initiative, and the 2009 Butmir process. These constitutional reforms included the indirect election of the Presidency through the Parliament; a reform that would have established a solution to the Sejdić-Finci case. Even though the Presidency seat was not guaranteed by these reforms to that of minority groups, it was still sufficient to the ruling of the European Court of Human Rights since it did not require the guaranteed seat, but the rightful possibility for candidacy. These reforms would also give entities a larger sphere of authority through the following mechanisms through the following amendments: the transfer of power from the states Parliamentary Assembly; and the right to veto on the proposal of candidates for the Presidency in the Upper house of the Parliament. The majority of the Bosniak representatives, however, voted against and this the packages were not adopted.
Despite this year being the 23rd anniversary of the Dayton Peace Agreement, and subsequently the 23rd anniversary of the adoption of the current Constitution, we are still yet to see a significant change in the Bosnian constitution. In the past 23 years, the Constitution of Bosnia and Herzegovina has stayed static, despite the expectations held for its eventual evolution and adaptation following the end of the war.
It is true that the Dayton Peace Agreement served its purpose; it ended the war and rebuilt, an albeit non-functional, recognised state. The international community has since suggested proposals for the change due to the failures in which the current constitution has provoked; it is now waiting for the initiative from the politicians within Bosnia and Herzegovina to take action. Yes, the DPA did give the state a complicated and complex system, but it failed to facilitate an environment in which the three entities could think, unite and agree upon future changes as one. There is a solution for the situation in which Bosnia and Herzegovina currently finds itself in, but all initiative and solutions proposed will fail without fundamental preconditions: political willingness, unity and persistence in carrying out change; the abolishment of nationalistic rhetoric entrenched amongst the political elites; and finally, the commitment to the creation of a stable, prosperous, multi-ethnic and democratic Bosnia and Herzegovina.
To conclude, for years the state’s fate was debated by outsiders and people inspired by the “bloody 90s”; But now comes the time where the Bosnian people can control their own political fate. It is finally time for the Bosnian people to unite and create their future through democratic means entrenched through the political legislation. The only course for the future of Bosnia, is the one that its people have chosen freely.
Enna Zone Đonlić comes from a small town in Bosnia and Herzegovina named Maglaj. Enna Zone earned a Master´s degree in Political Science and Sociology at the International University of Sarajevo and a Master´s degree in Civil Law at the University of Sarajevo. She graduated with a Bachelor degree in Political Science and Sociology with a minor in Psychology at the International University of Sarajevo. As an Ambassador at EST she has advanced her ability to transfer knowledge and reach young people. In 2014, she was awarded the title Youth Reconciliation Ambassador by Institute of European Affairs in Belgrade.
Velikonja, Mitja. Religious Separation and Political Intolerance in Bosnia-Herzegovina. Texas A&M University Press, 2003, pg. 237
US history of relations with B&H: https://history.state.gov/countries/bosnia-herzegovina; UN member states: http://www.un.org/en/member-states/index.html#gotoB
Holbrooke, Richard. To end a War. New York: The Modern Library, 1999, 133-141
Brljavac, Bedrudin. Europeanisation Process of Bosnia and Herzegovina: Responsibility of the European Union?. Balkanologie. December, 2011. Available at: https://journals.openedition.org/balkanologie/2328. Retrieved on December 09, 2018
Bildt, Carl. Help the Bosnia Parties to Make Dayton Work. Financial Times. April 3, 1996. Available at: http://www.ohr.int/?p=58108. Retrieved on December 09, 2018
Annexes of the Dayton Peace agreement gave authority to different international organisations: Annex 1A: Military Aspects of the Peace Settlement (NATO); Annex 1B: Regional Stabilization(OSCE); Annex 2: Inter-Entity Boundary Line and Related Issues (NATO); Annex 3: Elections (OSCE);Annex 4: Constitution (UN High Representative);Annex 5: Arbitration; Annex 6: Human Rights (OSCE and Council of Europe);Annex 7: Refugees and Displaced Persons (European Court of Human Rights);Annex 8: Commission To Preserve National Monuments (UNESCO);Annex 9: Establishment of Bosnia and Herzegovina Public Corporations (European Bank for Reconstruction and Development);Annex 10: Civilian Implementation of Peace Settlement (UN Office of the High Representative);Annex 11: International Police Task Force (UN) – Source The General Framework for Peace in Bosnia and Herzegovina Available at: http://peacemaker.un.org/sites/peacemaker.un.org/files/BA_951121_DaytonAgreement.pdf. Retrieved on December 09, 2018
FBiH 51% and RS 49% of the Bosnia and Herzegovina territory
Office of the High Representative. High Representative´s Decision on the Establishment of the Brčko District of Bosnia and Herzegovina. Available at: http://www.ohr.int/?p=67146. Retrieved on December 09, 2018
The General Framework for Peace in Bosnia and Herzegovina. Annex 4: Constitution. Article IV. IV(1), IV(2); Article V. V(2b), V(2d), V (3), V(4), V(4b); Article VI, VI(1). Available at: http://peacemaker.un.org/sites/peacemaker.un.org/files/BA_951121_DaytonAgreement.pdf
Ibid., Article III
Karić, Mirsad. Consociational democracy in theory and practice: the case of post-war Bosnia and Herzegovina. Sarajevo, International University of Sarajevo, 2016. 177-187
Lijphart, Arend. Democracy in Plural Societies: A Comparative Exploration. New Haven: Yale University Press, 1977, 31-44
Reform Agenda set plan for socio-economic reforms of all levels of government, and is expressed in six areas of importance as follows: Public Finance, Taxation and Fiscal Sustainability; The Business Climate and Competitiveness; The Labour Market; Social Welfare and Pension Reform; Rule of Law and Good Governance; Public Administration Reform. Available at: http://europa.ba/wp-content/uploads/2015/09/Reform-Agenda-BiH.pdf