The inter-relationship between the international community’s high representative, Alija Izetbegović and the issue of constitutional interpretation helps provide important answers to the question of what is wrong with Bosnia and Herzegovina.
By Dražen Pehar
Judging not from the recent debates here, but politics as actually played out in Bosnia-Herzegovina (BiH) over the last year and a half, the country is fully ripe for another war. In 1996 and 1997 our normal expectation was that, following a brutal and bloody war, BiH would begin gradually recovering as both its political elites and population seemed to have agreed on one set of common principles embodied in its Constitution, adopted as Annex 4 of the 1995 Dayton Framework for Peace. However, over the course of the last sixteen years our hopes have gradually diminished, came almost to nothing, and now we yet again witness a political crisis of major proportions.
The irony of the latest crisis is that it involves a head-on confrontation between the ‘Platform’ coalition partners, which came to power in the Federation of BiH in March 2011 by flouting parliamentary rules and procedures. The High Representative quasi-legalized their motion, having ‘temporarily suspended’ a BiH Central Electoral Commission decision that reasonably questioned ad litteramconstitutionality of the flouting (1). However, as one OHR official recently told me, “this time the High Representative will not intervene. We told them [the political parties concerned] that the Santa Claus [think for a moment of the choice of metaphor!] comes only once through the election round.” What is wrong with BiH, are its ills curable, and should one expect any change for the better?
Contextualising Bosnia and Herzegovina’s constitutional-political landscape
The recent TransConflict debate, even in its tone and occasionally overly-heated rhetoric, is just an echo of the 16-year old debate between political parties and ideologies in post-Dayton BiH. Mr. Mujanović’sproposal for a (potentially) radical change of BiH’s constitutional-political landscape through constituent, civic and state-wide (also somewhat politically-tailored and undemocratic) assemblies fails to take sufficiently into account the following three factors:
- BiH’s population has widely recognized and legalized the Dayton constitutional structure. Actually, it has done so many times by going to elections that are, as normal and expected, organized along the lines of the Dayton constitution, and also by paying taxes to finance the institutions created under the Dayton, by applying for vacant positions at the BiH state agencies etc. etc.
- Mujanović frames his proposal modestly as ‘proceduralist.’ Even when viewed simply as a proposal of a procedure, however, Mujanovic’s blueprint is lacking in two essential aspects. First, the devil is in the detail – provided that we ever reach the level of a state-wide referendum à la Mujanović, should we, for instance, adopt a two-third, or a simple, majority rule, or not, and why? Secondly, all proceduralist proposals tend to neglect one crucial aspect of politics, which is in the fact that all outcomes of all procedures need to be implemented; hence the ultimate outcome of all procedures depends heavily on the quality of the implementing agency. Having in mind the outcome of 1992 referendum on the independence of BiH, what makes Mujanović believe that this time the outcome is likely to be different? A more democratic and politically competent average BiH citizen?
- It seems to me that Mujanović at least tacitly expects that ‘his’ polycentric constituent assemblies will somehow lead, or give rise, to a new kind of political identification or categorization, for instance, in terms not of existing ethnic identities or of a cluster of collective identities, but of ‘individual citizens’ [Note, however, that Mujanović’s normative vocabulary is fully divorced from his specific policy recommendations.]. I do not consider this kind of political identification as politically impossible or ‘idealist’ in an empirical sense. I simply consider it as conceptually confused and as, in a political sense, conflict-aggravating. First, it is conceptually confused because it blurs the distinction between, on the one hand, ‘citizen as an individual’, which is politically irrelevant anyway (‘abstract individuals’ cannot be presented through constitutional categories that inescapably imply some level of both generality and collectivity), and ‘individuals as citizens of BiH taken collectively’, on the other. One should here note that the latter category is already constitutionally entrenched as all ethnic categories encompassed by the Dayton Constitution, to which yet-to be-identified ‘others’ are added, also figure as ‘the citizens of BiH’ endowed with sui generis, non-ethnic rights and responsibilities. This is not to deny that there are some individuals who persistently refuse to present themselves as ‘Bosniaks, Serbs, or Croats’, but one needs to have in mind that, if such individuals form a minority group, they are likely to get only as much protection as enjoyed by minority groups in the other constitutional, liberal democracies. As to the ‘conflict-aggravating’ character of Mujanović’s claims, they are likely to remind one of Alija Izetbegović’s claim that he fought the 1992-1995 war for an undivided country populated by an ethnically unmarked population, which was conveniently coupled with Izetbegović’s additional claim that ‘Moslems are a majority people of BiH,’ and that ‘the decision-making bodies in BiH should reflect the 1991 census.’ (2)
As to Ambassador Crawford’s response to Mujanovic’s ‘constitutional reform’ paper, it is too radical, in my view. First, I do not think that we would soon be getting closer to a radical revision of Dayton, for instance, through a three-entity structure. I am inclined to advocate another idea which seems to me fully in-accord with the Dayton constitutional structure – there ought to be a Croat electoral unit within the Federation so that we make sure that the BiH Croats elect their own representatives, both at the entity and the state level. Under the present electoral arrangement – to a large degree imposed in 1999 and 2000 by the then head of the OSCE Mission, Ambassador Robert Barry – Bosniaks are in position to heavily-influence the Croat representation, sometimes even to fully determine it, with ethnic discrimination and unfairness as unwelcome and, to BiH, detrimental results.
Second, it is implausible to think of BiH, or any country in that regard, as a site torn by irreconcilable principles. There is, for instance, no inherent contradiction between, on the one hand, the principle of self-determination and, on the other, the principle of national/ethnic equality; or the principle of enlightened democratic citizenry for that matter. It is true that there are some situations in which it seems extremely difficult to uphold simultaneously different political or moral principles, but such situations come under the heading of ‘moral dilemma’ – a frequent phenomenon in social and political life to which more or less creative responses can be provided. This applies as well to the Dayton Constitution which, at least as originally conceived, combines elements of self-determination, instituted to some degree, with elements of national/ethnic equality i.e. ethnic non-discrimination (3).
Third, I disagree with Crawford’s claim that some parts of the Dayton Constitution should be taken as, strictly speaking, unconstitutional due to, as Crawford argues, the alleged fact that those parts imply violation of the European Human Rights Convention. That depends on one’s reading, or interpretation, of Dayton.
For instance, the provision on election of a ‘Bosniak and Croat from the Federation’ to the BiH Presidency is discriminatory only if one interprets ‘Bosniak’ and ‘Croat’ as ‘a person who simply declares him or herself as a Bosniak or Croat.’ Still there is no inherent necessity to read it so and, moreover, there are strong reasons why an alternative constitutional interpretation of that part is preferable. In my view, the ‘Bosniak’ and ‘Croat’ should be read as ‘a representative of the Bosniak constituent peoples’ and ‘a representative of the Croat constituent peoples’, respectively. It is only under such a reading that the provision on electing BiH’s presidency members can be related to the constitutional-preambular definition of BiH as a state constituted by its constituent peoples. Actually, such a reading is the only one that makes sense in the light of the preamble to the Dayton Constitution. Additionally, two clear implications of such a reading are that it is fully compatible with a ‘non-Bosniak’ (or Croat) run for the position of the representative of the Bosniak constituent peoples in the BiH presidency, and that it unmistakably shows wherein lies the problem with the election of Željko Komšić as a Croat member of the BiH Presidency.
‘Santa Claus’, Izetbegović and the issue of constitutional interpretation
My tripartite reference to ‘Santa Claus’, Izetbegović and the issue of constitutional interpretation is fully deliberate. The three are interrelated, and the explanation of their interrelationship will bring us closer to answering the question of what is wrong with BiH.
Soon after the adoption of the Dayton Framework, Alija Izetbegović promised to his constituency that the battle would continue into the post-Dayton period. Of course, it is bound to be different in kind – a battle of words, ideas, and, most importantly, interpretations of the Dayton constitutional structure (4). In other words, Izetbegović promised that we would all return to the pre-1992 period and start the game anew. The ambiguities of Dayton naturally gave rise to a conflict of interpretations; for instance, concerning the exact division of responsibilities between the central, the state- and the entity-level. However, such a contest of interpretations in BiH is not played out in an intellectual manner; namely, as a conflict of arguments or reasons that may be adduced in support of one, or the other, interpretation. It is played out publicly, for a third side – usually a monoethnic electorate or the ‘international community’ – and presented in an emotive language that pays no attention to the logical-epistemic elements of interpretive practice.
More importantly, it is not played in the form of a discourse-friendly dialogue between the partners to peace implementation who are willing equally to give and take, to listen and be listened to. It is played in the form of an electoral combat; an exchange of intellectual bullets that brings electoral victory to approximately the same cluster of political parties. At times interpretations even come dangerously close to questioning the legitimacy of the fundamental building blocks of Dayton; for instance, as calls to minimize considerably the powers of the entities, or to dismantle the entities altogether, which expectedly breeds both animosity and counteractions in the form of public doubts concerning the viability of BiH as a state. One should, I think, be fair and add openly that a comparatively higher degree of anti-Dayton sentiment is cultivated and expressed among the Bosniak political and intellectual elite, for instance through the image of pre-1992 BiH as a perfect constitution, through the view of ‘Bosnian-Herzegovinians’ as authentic national category that either historically precedes or is for some other reason deemed superior to the categories of ‘BiH Croats’, ‘BiH Serbs’, or ‘BiH Bosniaks,’ and also through a not infrequent qualifying of Republika Srpska as an ‘entity created by genocide.’ (5)
There are two possible responses to such a situation. One, which I find more persuasive and productive in the long term, is to try to change political culture, in the spirit of creative conflict transformation; to persuade the leaders somehow that they ought to take a different, ethical attitude to political discourse, adhering strictly to the ‘pacta sunt servanda’ principle (6). The leaders should have realized long ago that it would be nearly impossible to change the basics of the Dayton frame except by force or fraud; that their differences in approach should be resolved discursively, in good faith among themselves, that they need to address each other, not a third party, and that it is really only up to them to make – through common reasoning and civilized debate – the best they can out of the Dayton structure. However, the developments in BiH have taken a different turn after the ‘international community’ decided to opt for a shortcut response of a kind.
The ‘Santa Claus’ – the High Representative (HR) – was endowed with the Bonn powers in late 1997. The powers straightforwardly transformed BiH into a kind of dictatorship; or as euphemistically and less accurately phrased, an ‘international protectorate.’ However, political combat within BiH continued and at times intensified. Had the HR acted as an ‘enlightened despot’, I guess that nearly everybody would have applauded such an intervention, despite its anti-democratic character. However, his specific interventions were erratic, aimless, often based on an extremely liberal interpretation of the Dayton, and dependent on a rare meeting of ‘international’ minds. (7)
Though the institution of the Bosnian dictator was introduced to do the work, it quickly become part of the problem and is increasingly considered as such, both at the domestic and the international level. In a way, that was expected too. If you introduce into a politically-polarized country a dictator with arcane foreign support, you can hardly expect that it would give the domestic politicians a lesson in a progressive, democratic or discourse-friendly culture (8). Hence Zlatko Lagumdžija, the leader of the SDP – who last year famously stated that “the enemies of Dayton will be sent to the Hague Tribunal” – simply imitates the role of a domestic HR, and seems happily unaware of the consequences of his own political discourse. One of the most authoritative condemnations of the institution actually came from the third HR, Austria’s Wolfgang Petritsch, who put it rather bluntly: “we tried to introduce democracy in the BiH by the means of dictatorship. Whenever I was forced to intervene, I thought that was a sad day for BiH.” (9) Such words are bound to receive a high degree of attention not only from the officials dismissed by the HR, or from part of the domestic electorate who support them, but also from the foreign ministries of the Peace Implementation Council countries.
Another part of the problem is simply a lack of ideas, a lack of political creativity, which applies to both domestic and international ‘guardians’ of Dayton. I felt a slight vertigo when I found out that one of the key authors of the Dayton Constitution, Jim O’Brien, frames the problem of interpretation of the constitution in terms of the distinction between ‘forward looking’ and ‘backward looking’ provisions. He views the problem simply as one of deleting a number of provisions that, in his view, smack of illiberal or un-American political philosophy, if there is such a thing (10). Worse still, it seems that O’Brien’s policy played an important part in the mandate of at least one High Representative, who boldly stated that “his mandate was to dismantle gradually the Dayton structures in order to create efficient state institutions.” (11) I was not really inspired when I heard the US Vice-President, Joe Biden, addressing the BiH parliament in 2009 to tell MPs that “we fell, and we shall rise again”, or, concerning the problems of the Dayton implementation, that “we [USA] are your project” and that “today’s minority may tomorrow become a majority.” (12) Or, check the following claim in support of continued existence of BiH as a relatively unified, but two-entity- and three-peoples-state, by Daniel Serwer, a member of Holbrooke’s team at Dayton: “Nor, as some claim, is it a “majority” of Bosnia’s population that does not want Bosnia to remain an independent, multi-ethnic state within its current borders. No census has been done in Bosnia since before the war. But a back-of-the-envelope calculation suggests that close to half of the population, if not more, is Muslim. They were already well over 40 percent of the population before the wars, and subsequently more Croats and Serbs have left the country than Bosniaks.” The claim draws on the idea of majorities and minorities which proved to be a non-starter for BiH many times through its modern history. The claim’s empirical content is presented more in the fashion of a fairytale than serious statistics and, perhaps most importantly, it makes no reference to the fact that, at least at the time of Serwer’s writing, the Bosniak (or ‘Muslim-based’) parties were the most vocal opponents of a first post-Dayton, state-wide census.
The talk exemplified by the above four statements is a part of the problem too, despite Carlos Westendorp’s description of High Representative’s ‘Bonn powers’ as motivated exclusively by an “abnormal mentality among the BiH political leadership.” (13)
A politics of war-like mentalities
Let me now summarize the key parts of my argument.
Politics in BiH, both foreign and domestic, is a politics of war-like mentalities. Inspired by opposed constructions/interpretations placed on the Dayton structure, and unable to frame their interpretive deliveries charitably in the form of an even-handed moral-political argument, political leaders do excellent work at maintaining the state of permanent post-Dayton crisis (This does not imply that intellectuals, or even wider sections of adult population, are less culpable; for instance, it is not difficult at all to demonstrate that the BiH academic elite, especially in the area of social science and humanities, gives full ideological support to the political leaders of the proper constituency and thereby contributes to perpetuation of the post-Dayton conflict of political ideas and interpretations (14)). This plays well into the hands of the High Representatives and the international community, whose occasional interventions only appear to bring the state of BiH back to life. That much is clear. It is also clear that, under the conditions that include a despotic foreign ruler endowed with ad libitum powers, BiH is not a real state and it is not a real democracy. Its economy is increasingly worsening and its ‘rule of law’ is a blessing to any criminal.
For how long should this purposeless game continue? If the game is about foreign financial interests, is it not imprudent to keep politics unstable for so long? Should not somebody in the ‘double bind’ chain, that connects the dictator representative of developed democracies with domestic, democratically-elected representatives of ethnic yet highly stratified communities, get tired and call it a day? What kind of change is required, and what kind is possible? Should we expect the dispossessed people, the real victims of post-Dayton BiH politics, to see through and cut the chain? Such serious, or seriously meant, questions are infrequently raised in BiH. Attempts at well-informed answers are even less frequent. I take this to imply that the present condition of BiH as a quasi-state that depends on Santa Claus’ gifts of either dubious quality or short-term expiry date is likely to continue.
Dražen Pehar has a PhD in politics and international relations from Keele University (SPIRE 2006), holds an assistant professorship (BiH) in the philosophy of law and in politics with sociology. Dražen is a DiploFoundation Associate, and previously served as Chief of Staff to the BiH Federation President (1996) and as a media analyst to the OHR (1999/2000).
1) Kostić, Roland (2011), ‘Education through regulation? External intervention in domestic politics in post-Dayton Bosnia and Herzegovina’, in: Fjelde H., Höglund K. (eds.), Building Peace, Creating Conflict? Conflictual Dimension of Local and International Peacebuilding, Nordic Academic Press, pp. 105-129, pp. 123-4.
2) The first part of the claim is a gross political fabrication: see Pehar, D. (2011a), Alija Izetbegović and the War in Bosnia and Herzegovina (Mostar: HKD Napredak, a bilingual edition; available from www.dibido.eu andwww.scribd.com) pp. 145-9 and pp. 157-8
3) For more detail, see my 2006 paper on moral dilemmas and the Dayton Constitution, available by clicking here.
4) Pehar (2011a) pp.139-141
5) For an important part of the story on the conflict of political interpretations, see Pehar D. (2004), ‘Irrationalities in political interpretation of the Dayton structure for Bosnia-Herzegovina – lessons for politicians at home and abroad’ (Status, Mostar, pp. 81-91), the version available by clicking here; see also Pehar, D. (2011b), ‘Rat u tzv. BiH nije završen, samo je postao gorim’ (‘The war in so-called BiH has not ended, it has only worsened’, available by clicking here)
6) I proposed a kind of discourse-ethics that should help in such situations in my PhD thesis (Chapter 7): Language, power, law: Groundwork for the theory of diplomatic ambiguity (SPIRE; Keele UK); with a revision published as a monograph in 2011 with the title Diplomatic Ambiguity (LAP Lambert Academic Publishing).
7) For more detail, and sources, on the High Representative, see Pehar D. (2012), ‘Bosna i Hercegovina kao veleposlanstvo Visokoga Predstavnika – republikanska kritika’ (Političke analize, Zagreb, br. 10, pp. 3-9): English version available by clicking here; for an outstanding legal analysis, see Baros, M. (2010) ‘The High Representative for Bosnia and Herzegovina: A Requiem for Legality’, European Journal of International Law Blog,available by clicking here. For an insider’s account of Transatlantic disagreements concerning the proper implementation of the Dayton Framework for Peace, see Haller, G. (2002), Die Grenzen der Solidarität, Berlin: Aufbau Taschenbuch Verlag.
8) As the first High Representative, Carl Bildt admits in his January 28 2011 interview (p. 3) to Nezavisne Novine, a Banja Luka daily.
9) This statement by W. Petritsch was widely publicized through BiH media in the aftermath of the High Representative’s Inzko decision to ‘temporarily suspend’ the decision by the Central Electoral Commission.
10) See Kostić, R. (2011) pp. 109-112
11) Lord Paddy Ashdown, interview to a Sarajevo daily, Dnevni Avaz, May 16 2009
12) US Vice-President Biden, May 19 2009 Address to the BiH Parliament; a private record.
13) See Hudson, R. (2003), ‘The Return of the Colonial Protectorate: Colonisation with Good Intent in the Western Balkans?’ in: Before Emergency: Conflict Prevention and the Media (eds. M. Aguirre, F. Ferrándiz, J.M. Pureza), Bilbao: University of Deusto, pp. 103-124, p. 119
14) As to one aspect of territorial division of academic political theory/ideology in BiH, see Pehar D. (2011c), ‘“Deparlamentarizacija“ ustavotvorstva, Daytonske ustavne aporije, i simulakrum „bosanske nacije“ – svjedočanstvo o dovršetku teritorijalizacije pravno-političke misli u BiH’ (Status, 15, pp. 125-147).