Bosnia’s irreconcilable principles

A response to Jasmin Mujanović’s recent article, examining the irreconcilable principles that explain the Dayton Peace Accords and which suggest that, for now, some sort of confederation is the best possible outcome for Bosnia and Herzegovina.

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By Charles Crawford

Jasmin Mujanović, a self-proclaimed “proud Wobbly”, occupies a political space most of us do well to avoid, namely a youthful Left-anarchist predisposition based in Canada. He brings to his analysis of the former Yugoslavia something new: the attempt to apply anarchist theory to lived/organic social experience in the Balkans as a response to the failed policies of socialist authoritarianism, nationalist clero-fascism, and neolberalist dispossession”.

Thus it is not surprising that he finds a lot of unsatisfactory elements within the current constitutional arrangements in Bosnia and Herzegovina, as described in his two pieces here at TransConflict. The first much longer one is the more interesting. The second, short one offers anarchist-lite fantasy ideas for reforming BiH’s constitution:

Initially, what one could imagine taking place is a series of assemblies across the country – presumably in all the major cities, though steps should be taken to ensure the participation of rural residents. The assemblies would be facilitated by various activists, academics and experts from across the country, the region and the world…

Steps should be taken to ensure that participants reflect all of the demographic realities in the country – however, with emphasis placed on a diversity (or plurality) of identities (i.e. rather than being strictly Bosniak, Croat or Serb, organizers should ensure, as much as possible, that participants represent different regions, classes, age groups, gender(s), sexual orientation(s), educational backgrounds, personal orientations etc)…

It is especially important to ensure that overtly partisan participants (e.g. high-ranking party members or hired rabble-rousers—likely of the nationalist sort) be kept to a minimum. Indeed, the entire process is designed to circumvent the individual party apparatuses and speak directly to and with the citizens themselves.

But what if many citizens are in fact ‘overtly partisan’ in one sense or other? And who chooses the facilitators and ‘organizers’? A less legitimate, coherent or useful process in the Bosnian context is hard to imagine.

The substantive point Mr. Mujanović makes in his first article is familiar enough: that the Dayton Peace Accords and, in particular, the new BiH Constitution imposed a very unsatisfactory settlement:

As “inter-communal animosity” or violence, as it is popularly imagined, was never the cause of the war in BiH or even the wider dissolution of Yugoslavia, the problem Dayton sought to address with the establishment of its apartheid-like logic was entirely the product of warped chauvinist policies and propaganda, and the disappointing proclivity of the international community to become handmaidens to this process…

All of this insanity is the product of a constitutional order which simply does not represent individual citizens. By continuing to insist on this so-called “ethnic consociationalism,” what the international community is actually creating is a political system wherein the theatrical antagonisms of chauvinist elites supplant the democratic participation of ordinary citizens.

All this was obvious enough back in 1996, when I arrived in Sarajevo as British Ambassador. Indeed, armed with my bitter experience of trying to make ‘Dayton BiH’ work, I wrote a long paper at Harvard on the subject in 1998/99, making a point eventually vindicated by the European Court of Human Rights – that the BiH constitution was itself unconstitutional! Thus:

Article V laid down that “The Presidency of Bosnia and Herzegovina shall consist of … one Bosniac and one Croat, each directly elected from the territory of the Federation, and one Serb directly elected from the territory of the Republika Srpska”.

This bizarre provision meant that, for example, no Bosniac returning to live in Republika Srpska could run for the highest office in his/her own country, and that Jews or people of mixed ethnicity choosing to call themselves Bosnians were barred from candidacy wherever they lived. It also arguably ran counter to the European Convention on Human Rights which elsewhere was incorporated directly into the BH Constitution and given “priority over all other law”. Is the Bosnia and Herzegovina Constitution unconstitutional?

It’s nonetheless worth thinking about why this was done. The BiH politicians at Dayton were no fools; nor were Dick Holbrooke and the international expert team working to pull together the draft Accords. What was going on? The key weakness in Mr. Mujanovic’s analysis is that he offers nothing at all on this key point.

The short answer is that, for several centuries, European legal and political thinking has been grappling with a deep problem: how, if at all, to give constitutional effect to linguistic and cultural differences between communities? This is an existential and therefore sensitive question, especially if one belongs to a cultural/linguistic minority in any given territory. Without legal and, perhaps, formalized political protection, what is to stop a majority community from stacking the deck in, for instance, schools, jobs and contracts, to the point of leaving the minority impoverished?

This issue posed special problems for Marxists. How to reconcile global revolutionary ambitions with the reality that for many unique communities across Europe their very existence rather than class struggle was their main concern? Hence a vast bloc of theoretical work on the so-called National Question. The Soviet Union made enormous efforts to institutionalize and codify national identities at all levels of society, on a scale never before seen. Most European countries have given legal and/or political expression to ethnic rights in different forms. As does Canada.

Communist Yugoslavia took on some of the then current Soviet-style legal classifications. Ethno-linguistic communities whose homeland was Yugoslavia (Serbs, Slovenes, Croats etc) were called ‘narodi’ (‘nations’); those whose homeland was another country (Hungarians, Romanians, Albanians etc) were called ‘narodnosti’ (‘peoples’). Other small, ad hoc communities were called ‘manjine’ (‘minorities’). Today’s independent Slovenia still gives constitutional protection to “autochthonous ethnic communities” (Italians and Hungarians) and, crucially, links their rights to specific territorial areas.

In other words, there is nothing a priori bizarre or insane or chauvinistic in devising constitutional arrangements that a) give formal recognition to distinct categories of people (e.g. ‘Serbs’) and b) link political rights to identified territory.

On the contrary, this explains the sustained decades-long pressure within Yugoslavia from the significant community of people living mainly in Bosnia and Herzegovina that did not identify itself as Serb or Croat, but rather as a group with unique Bosnian and, specifically, Muslim roots. Wikipedia:

In the 1948 census Bosnia and Herzegovina’s Muslims had three options in the census: “Serb-Muslim”, “Croat-Muslim”, and “ethnically undeclared Muslim”. In the 1953 census the category “Yugoslav, ethnically undeclared” was introduced and the overwhelming majority of those who declared themselves as such were Muslims. The Bosniaks were recognized as a ethnic group in 1961 but not as a nationality and in 1964 the Fourth Congress of the Bosnian Party assured the Bosniaks the right to self-determination. In 1971 the Muslims were fully recognized as a nationality and in the census the option “Muslims by nationality” was added.

In other words, the ‘Bosniaks/Muslims’ wanted to achieve the ‘top’ status of a narod, which they finally secured in 1971. The significance of this when Yugoslavia started to break-up was enormous.

The republic of Serbia was accepted by all as being ‘for’ the Serbs, Croatia was ‘for’ the Croats and Slovenia was ‘for’ the Slovenes. The Bosniaks, in effect, argued that as they were the largest community in Bosnia, it made sense that Bosnia and Herzegovina be ‘for’ them (or at least mainly for them). This was angrily contested by the Serbs in Bosnia and Serbia alike, many of whom who believed that the Titoist post-WW2 version of Bosnia had been created deliberately to cut Serbia down to size and had no intrinsic legitimacy.

If BiH was not for any one community, it would have to be shared or maybe even abolished. But how? Conflict!

It was not surprising that Dayton built on these pre-conflict Yugo-constitutional concepts – all the Bosnian participants expected and wanted that. The specific problem with the final Dayton outcome was that it was lop-sided: in one country, with three main communities, it created only two ‘entities’. Why? Because it built upon the blunder of Washington and Berlin several years earlier in pushing the Bosniaks and Croats into an alliance against the Serbs, and giving that unhappy marriage a new constitutional expression – the Federation of Bosnia and Herzegovina.

This was a terrible mistake on two levels: it created a new ethno-territorial formation, and it explicitly organised such a formation against Serbs. The Bosnian Serbs must have been delighted – their whole political point was not to be in anything led by Bosniaks and Croats. Dayton formalized this mistake, giving the Serbs too much and the Bosniaks and Croats too little.

Now what? No-one knows. The Serbs have no reason to give up or redefine ‘their’ share of BiH, and have all sorts of legal ways to block constitutional reform. The Bosniaks and Croats bicker within ‘their’ Entity as they can not agree on what should replace it: a package of checks and balances that suits the relatively large Bosniak community does not suit the much smaller Croat community. The result? Deadlock and stagnation, and incredibly poor returns on the generous investment from the international community in Bosnian reconstruction.

My own conclusion is that some sort of confederation – within which each main community has its own defined territorial space – is a better outcome for now. Yes, it is based on more ethno-territorial classifications that can be abused and are objectionable (to some) in principle. But it is at least crudely ‘fair’; as this term is understood in that part of the world. It gives each community an element of operational political insurance and, therefore, in due course may create the psychological space for more radical economic compromises (and, perhaps, a lot more grassroots pressure for further reforms).

The main problem is that the various Bosniak leaderships all hate the idea, as it further denies their core instinct that the whole territory of Titoist Bosnia and Herzegovina is ‘for’ them. And if the largest community in BiH won’t buy it, that change won’t happen.

Thus the political space for any change narrows down to small, crab-like manoeuvres that look ridiculous and largely change nothing much, performed – if at all – within Bosnia’s EU accession processes. Undignified? Yes. Wasteful? Definitely. Depressing? Utterly.

When deep, irreconcilable principles collide, sometimes you just get stalemate.

Charles Crawford served at the British Embassy in Belgrade from 1981-84 and later as HM Ambassador to Bosnia and Herzegovina and the Federal Republic of Yugoslavia (Serbia and Montenegro). He writes at www.charlescrawford.biz and Tweets @CharlesCrawford

If you are interested in contributing to the debate on constitutional reform in Bosnia-Herzegovina, then please contact TransConflict by clicking here.

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