Bosnia – the challenges of constitutional reform

In an exclusive interview for TransConflict, professor Bruce Hitchner, chair of the Dayton Peace Accords Project, discusses the prospects for constitutional reform in Bosnia and Herzegovina following October’s elections.

1. What kind of challenges does the historic nature of Bosnia’s contested statehood pose to the state-building efforts in general and to constitutional reform in particular?

The history of inter-ethnic relations in Bosnia had much to recommend it prior to the war. Dayton brought an end to the war. It also created a state which reflected the bitter war-time ethnic divisions—with an important caveat recognized in virtually every Annex to the Agreement, including the constitution (Annex 4): that the state of Bosnia affirmed and restructured in the Agreement was a work in progress, not a finished product. The hope AND intent of the Agreement was to rebuild ethnic relations in the country through peace, the promotion of greater inter-ethnic as well as citizen to citizen cooperation in the common institutions of the country, and to increase such cooperation through improvements in the functionality and effectiveness of those institutions. Throughout the state constitution and elsewhere in the Annexes one can find wording that encourages change, evolution and development in the institutions of Bosnia and Herzegovina. One may be conservative or liberal about how much change is called for, but on one thing there must be consistency of interpretation: the Constitution does not assume that the 1995 version of the document would or should remain unchanged. The mechanisms for reform were built into it, and where they were prescriptive they called for strengthening and not weakening of the common institutions.

As with any modern state, there must be a continuous political dialogue in Bosnia about how to keep the country moving forward. This dialogue, of necessity, involves not only matters of politics, economy, foreign affairs, etc. but also debate over common institutions, values, and ideals. And as with any country, including my own, this dialogue should be about defining ways to shed values and beliefs that are detrimental or destructive to the common purpose. If there is one thing to be learned from the last century or so of Bosnia’s history, it is that political thinking strictly in terms of ethnic groups, collectivities, minorities, and constituent peoples has been unacceptably costly in terms of lives and treasure. The fundamental merit of constitutional reform for Bosnia to this dialogue is that it is an enlightened process for addressing how the country can best establish a government that protects the historic rights and interests of all, but which can also function as a modern European-style government capable of dealing responsibly with issues which go well beyond the limited spectrum of ethnic rights and interests.

2. What kind of role should the international community play in constitutional reform (i.e. a consultative role vs coercion)? Can any progress achieved through externally-led constitutional amendments be sustainable?

Many of the issues surrounding constitutional reform are the same as those that contributed to the war from 1992 to 1995. Hence, whenever Bosnian politicians meet alone, i.e, without outside mediation, to discuss constitutional reform, it has proved extremely difficult, if not impossible, for them to reach agreement on amendments to the constitution. The only partial success they have had to date is when they engaged in the internationally facilitated negotiations in 2005 which led to the April Package. Facilitation and mediation are not bad words and are not the equivalent of intervention and coercion. It needs to be recalled in this regard that when we helped facilitate the 2005 April Package negotiations, we functioned as the Secretariat for the political parties’ Constitutional Reform Working Group. In other words, we worked for them. That model still has merit.

On a broader level, constitutional reform in Bosnia needs outside mediation because continued failure in the near term to make progress is not just a domestic problem; it puts the stability of the country and of Europe at risk. Bosnian politicians ought to recognize this if they are truly committed to stabilizing the future of the country. It is not a matter of sovereignty or outside intrusion into Bosnia’s domestic affairs. The fact is Bosnia has not been governed effectively in terms of its obligations to its citizens and with respect to its role in the international community and that is a concern that transcends the country’s borders given its recent history.

3. According to the Head of European Commission in Bosnia-Herzegovina, Dimitris Kourkoulas, the entity structure should not be an obstacle to Bosnia and Herzegovina’s accession to the EU, and EU integration does not necessitate significant constitutional changes. Do you agree with these statements?

It is in principle easy to say that a few small changes here or there are all that would be necessary to meet Bosnia’s accession to the EU, or that meeting the ECHR requirements is a small matter easily done. If that were the case, we wouldn’t still be talking about these matters 15 years after Dayton. The truth is that constitutional reform even modest reform requires a sustained and focused commitment on the part of all parties involved. And the only time that occurred was, again, in 2005, and that was initiated through a sustained second track initiative. With regard to the entities, while it is true that the entity structure is not an obstacle to EU integration, the way the entities currently function internally and with respect to the state is a problem for the integration process, and until that relationship is fixed EU integration will remain further distant than it need be.

4. Aside from those necessitated by the ruling of the European Court of Human Rights, what constitutional reforms should Bosnia-Herzegovina undertake, and does the failed April 2006 package provide a good basis for any future talks?

The ruling by the ECHR is, I believe, quite wide ranging in its potential constitutional impact in that it touches crucially on the issue of fundamental citizen rights in government. The April Package was an initial and modest attempt to reduce the many structural impediments in the functioning of the State Parliament, Council of Ministers, and Presidency. If one reads the Dayton constitution carefully and observes the performance of the government over the last 15 years, for example, it becomes abundantly clear that the Vital National Interests protections for the three Constituent Peoples permeate all three branches of state government. The end result is that the state government is one massive blocking mechanism when it comes to legislation and governance. Add to this the considerable powers of the entities and the cantons in the case of the Federation to protect further the VNI of Constituent Peoples, and it is not hard to see why some have considered the April Package the least that could have been done to fix government to begin to make it work in Bosnia.

5. Why, in your opinion, did the April 2006 package of reforms fail, and what lessons can be learned for future reform efforts?

We will never know all the reasons the April Package failed, but it can’t be forgotten that the small team which Don Hays, Paul Williams, and I formed to serve as the Secretariat was nothing more than a very modestly funded, virtually ad hoc second track process. Our effort was often dismissed within parts of the IC as nothing more than “an NGO thing” that wasn’t to be taken seriously. And, although the political leaders appointed the members of the Working Group which hammered out the amendments by between April and November 2005, neither they nor the international community had paid sufficient attention to or took seriously enough what had been achieved, despite being fully and regularly briefed by us. Thus, it took an additional (and unanticipated) five months of work to bring the leaders around to what their working group had achieved. As a consequence, the original plan to bring the package forward for early debate and a vote in Parliament in December-January was lost, and with it all the positive political momentum which had built up in by November 2005. Had the Package passed in January, the 2006 elections would have been run under the terms of the amended constitution. That may have been a bridge too far, so to speak, for some, and not enough for others. In retrospect, it was and remains an opportunity lost.

The main lesson to be learned from the April Package process is that constitutional reform cannot be pursued lightly or without sustained and focused involvement by the political parties and outside mediators. The April Process got as far as it did because the Working Group and mediation efforts met this standard. It failed in part because not all of the interested parties had a similar commitment throughout the process.

6. What is your assessment of both the Prud process and last Autumn’s Butmir talks?

My earlier comments regarding the difficulties of going it alone on constitutional reform for the Bosnian parties apply to the Prud process. Some of the participants were favorably disposed to outside facilitation, others weren’t. So there was no outside facilitation and the process for that and other reasons was unsuccessful. As regards Butmir, if one takes the view that its primary purpose was to arrest the downward political slide of Bosnia, it had limited success. But in its effort to arrive at quick fix solutions on state property, closure of OHR, and constitutional reform, it was unsuccessful. It would have been better had Butmir been the beginning of a well-thought out and longer term new strategy that included, among other things, an in-depth and sustained constitutional reform initiative. Contrary to what some may still think, there are too many deep structural problems in Bosnia’s government that cannot be resolved through the EU integration process alone. And it is a delusion to think that if everybody just agreed to cooperate under the current constitution everything would be fine. The constitution was created and to some degree reflected the war-time political environment in 1995. Fifteen years later Bosnia needs a constitution that is better, and certainly not less than a mere Annex to a peace agreement.

So what to do? I suggest that all sides need to agree on a “rules of the road” for future constitutional reform and to that end I propose the following:

a) Constitutional reform is the primary tool for achieving a peaceful resolution of Bosnia’s contested statehood.

b) Constitutional reform ultimately involves streamlining, improving, and rationalizing the relationships and responsibilities of all levels of government in Bosnia, not just the state.

c) The US, EU, and other partners in the region have a strategic interest in facilitating proactively constitutional reform as the primary tool for assuring a stable Bosnia within the Euro-Atlantic community.

d) Constitutional reform is a prerequisite for the termination of the Dayton intervention and EU integration for Bosnia

e) The complexity and importance of constitutional reform for Bosnia requires a sustained investment of resources and personnel by all interested parties.

7. Are you optimistic that the Results of October’s elections can contribute to creating a more constructive environment for constitutional reform?

Yes. But work on re-launching constitutional reform should not wait until a state government is formed. There is much preliminary planning that can and should be done now in Bosnia, Brussels, Washington, and in the region. If we wait until a new government is formed, it could easily be late 2011 before any real work on CR gets started, and then those who wish to impede constitutional reform will start stating anew that an election is just round the corner and nothing can be done until after the election.

R. Bruce Hitchner is Professor of Classics and International Relations and Director of Peace and Justice Studies at Tufts University. He is also Chair of the Dayton Peace Accords Project. Along with Donald Hays and Paul Williams, Hitchner helped launch and facilitate the negotiations which lead to the April 2006 Package of constitutional reforms.

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