Does Bosnia need a new constitution?

The only way to manage the problems pertaining to constitutional reform is finally to abolish Bosnia’s fourth arm of government, international oversight; encourage the country’s three groups subsequently to negotiate reform of its constitutional system finally outside the shadow of international oversight. This should be the international community’s plan to secure Bosnia’s European future.

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By Matthew Parish

One might find the title of this article unusual, because it is not an article about reforming Bosnia’s constitution – or, at least, not principally. Instead this is an article about the continuing international presence in Bosnia and Herzegovina, which at the time of writing has lasted more than six times as long as the war that gave rise to it. The United Nations presence in the country has lasted almost 23 years, yet there has not been a single violent incident in Bosnia of the kind typically used to justify international peacekeeping missions in over twenty years. Why therefore is the UN mission, that at one time used to engage in heavy-handed intervention in Bosnia’s internal politics but now does relatively little (at least formally), still exist?

To understand the reason why, we might start with some observations relatively sympathetic to (individual) international officials. Although Bosnia’s international officials have been to a substantial extent ineffectual, the officials themselves are not necessarily to blame for this. One frustration suffered by almost every international official sent on mission to a post-conflict environment is the absence of a specific realistic mandate when they begin in office. The appointing powers typically describe their mandates in ambiguous, open-ended and hortatory terms, or simply in misleading ones. Alternatively, different appointing powers (in multilateral cases) may set different agendas for the officials they appoint, which are often inconsistent.

As a result, international officials are often left to work out for themselves what they are supposed to be doing. They may do this by listening to prior officials, or by listening to one or more of the parties to the conflict, or by following their own views and moral prerogatives. Or they may decide to do nothing (or as little as possible), in the interests of self-preservation. It can be politically dangerous to a well-paid international career to adopt anything outside the prevailing mainstream views. The typical mandate of an international official being either short (two to three years) or very long (because the official decides to reside permanently in the country in question), knowledge acquired about the conflict zone tends either to be lost quickly due to turnover or international officials find themselves too deeply implanted in the local culture and hence they may lose the requisite objectivity. Both these problems have been found recurrently in the 23 years during which Bosnia and Herzegovina has been subject to a regime of international governance. I should know: I can accept that I might have made all the foregoing mistakes at different times when I was an international official in the region.

The international officials sent to Bosnia and Herzegovina have had particularly unusual mandates. Those mandates have not, other than formally, been to prevent the resumption of armed conflict. There have been no potential incidents of armed conflict to prevent. Bosnia has been at peace for so long that no international officials still operating in the country have experience of the country at war. Instead their mandates are typically described in one of two ways: either upholding the “Dayton Constitution” (Bosnia’s ferociously complex constitutional structure agreed by the warring parties at a US airforce base in Dayton, Ohio in November 1995 under extreme pressure from the late US diplomat Richard Holbrooke and his team), or encouraging the parties to develop so-called “Euro-Atlantic institutions” – in other words, developing Bosnia’s institutional quality so that the country is ready to join the European Union. The problem with this latter course is that the Dayton Constitution is so dysfunctional that it is easy to conclude that the constitution itself – the principal component of the Bosnian peace agreement – is the reason why Bosnia’s political institutions remain of such reprehensibly low quality. So on the one hand international officials are supposed to uphold Bosnia’s peace agreement, but on the other hand they are supposed to change it.

What is wrong with Bosnia’s constitution? No short essay can do justice to the mammoth task of answering this; a better question might be to ask what is right with it, for the answer is virtually nothing. Every institution the constitution creates, from the tripartite Presidency through to the Council of Ministers (ostensibly an executive cabinet structure) to the bicameral parliament and the Constitutional Court, is dramatically misconceived in mandate, composition, functionality and comparative (horizontal) distribution of powers. Even worse, the constitution is too quiet on far too many issues, particularly (vertical) distribution of powers between the central government, the entities (the highest level of sub-sovereign unit), cantons and municipalities. Those issues are dealt with (equally or even more elaborately and misguidedly) in a series of confusing sub-sovereign constitutional documents and a lop-sided array of domestic legislation at different levels.

Hence the constitutional structure of a country of a mere four million people is far too complex. This makes decision-making impossibly sclerotic (I borrow this phrase from the late Paddy Ashdown, himself the country’s most senior international official for some four years). It renders inter-ethnic cooperation more challenging than it ought to be, because the complexity of the political structures gives too many small political groups wrecking opportunities. Bosnia’s constitutional structure is consociationalism gone mad. The result is that political decision-making more often than not takes place outside formal political structures – instead within ironclad party structures (a legacy of communism), for example – and this in turn contributes to indefinite diminution in institutional quality because the real decision-making structures are opaque and problems such as corruption are therefore all the more difficult to address.

All the country’s three ethnic groups have an interest in constitutional reform. Nobody can seriously maintain that so dysfunctional a constitutional structure, agreed as a last resort in documentation everyone admitted was a necessary evil to bring the deadly Bosnian war to a conclusion in 1995, is a helpful way of pretending to administer the country in 2019. Nevertheless precisely because the Dayton Constitution was a compromise between the three parties’ interests in the civil conflict, the directions in which the constitution ought to be reformed remains one of perennial debate between the politicians representing Bosnia’s three ethnic groups. To characterise the debate at its simplest, the Bosniacs (Bosnian Muslims), who may occupy a bare majority of the country’s population and whose political centre is the country’s formal capital Sarajevo, seek the abolition of Bosnia’s consociational political structure in favour of a unitary system of government that they thereby hope to dominate.

By contrast the Bosnian Serbs whose de facto capital is Banja Luka, and to an extent the Bosnian Croats based in Mostar (although the evidence suggests the proportion of Bosnia’s population that is actually Croat is now fairly small – most Bosnian Croats departed for Croatia, now part of the European Union, where standards of living are substantially higher), want to maintain consociational principles in the constitution to preserve minority rights. Although the constitutional debate is often captured in a panoply of more dramatic terms typically relating to the war’s multiple injustices, the Bosnian constitutional conundrum is at its heart a classic problem of how to preserve minority rights in a post-conflict context. This problem is not novel. A variety of post-conflict countries have encountered the same challenges. The problem is that at Dayton, for whatever reason (and Holbrooke and his team were not necessarily to blame – they inherited an assortment of mismanaged international attempts to resolve the Bosnian war before them), the problem was not addressed well. The result is not sustainable if Bosnia seeks progress.

This is the reason why the country’s continuing international community presence is proving so hard to eradicate. A faulty peace agreement has proven itself irreformable; nobody has been discussing constitutional reform in significant ways since a failed internationally-driven process ending in 2006. Bosnia has been labouring with a faulty constitutional structure ever since, and the international community in the country will not shut itself down because the system remains so faulty and hence there is always more to be done in the way of supervisory oversight. After every set of significant elections, the process of forming a government pursuant to the burdensome consociational principles contained in the constitution proves elusive without international pressure. Therefore the imperative to remove that international pressure evaporates. International officials remain in their posts, because – so it is imagined – if they departed then the whole system might fall apart. The argument goes that because the constitution is so dysfunctional, Bosnia needs a fourth branch of government – the International community – to keep the ship steady.

That is the reason why international officials remain in the country well past their sell-by dates. Indeed the problem is even worse than one might imagine. The continuing international community presence is also arguably the reason why the country’s levels of economic development and institutional quality remain so pervasively poor. In a tolerably functional democracy, different groups with competing goals learn to cooperate and compromise over their objectives in the interests of the common weal. The presence of international community officials to supervise Bosnia’s democracy removes domestic politicians’ incentives to do this. That is because Bosnia’s politicians are relieved from their democratic responsibilities through acting in the international community’s shadow. Ultimately, they can say, they are not responsible for this dysfunctional system that was created and imposed by foreigners and is now supervised and, in the final event, is likewise decided upon by foreigners. Because Bosnia’s politicians can disclaim responsibility, they do not act responsibly and they do not compromise.

Bosnian politicians’ incentives are to occupy fundamentalist positions so as to out-flank perceived moderates in their bids for popularity with their respective electorates. All these deleterious incentives are preserved even if the international officials do not actually do anything. The mere fact that they exist, and hence they can be asserted to be doing something, preserves the interests Bosnia’s politicians have in not cooperating with one-another. This is the magic underlying the international community’s continued presence in post-war Bosnia. It explains why Bosnia’s politicians do what international officials suggest they ought to, even though the international community no longer has any de facto powers to force them to do so. Domestic politicians want to preserve the illusion amongst their electorates that the international community still has authority. That is why they obey – or they pretend to obey orders that they pretend the international community has issued to them.

The problem gets worse still. It has long been observed that the international community in post-war Bosnia, being based almost entirely in Sarajevo, has been the subject of an element of domestic political capture by one of the country’s three ethnic groups that dominate Sarajevo – the Bosniacs. Most of the people international officials have the easiest access to are Bosniacs. This means that international officials hear the anti-consociationalist message more frequently than they do the narrative relating to protection of minority rights. The Bosniacs are not to blame for this; given the opportunity, effective lobbying of the international community is their most naturally advantageous course in pursuing those of their political objectives that stand in contrast to the objectives of the Bosnian Serbs and Bosnian Croats.

Effective lobbying of an international structure that has the perceived power to be the final arbiter of important decisions in a consociational system is more rational than compromising with one’s political opponents. Indeed this is more rational even if the lobbying is ineffective because the international officials are not doing anything, as long as one can maintain the pretence that they are. Bosniacs are going to get more out of the system by following this course. Therefore maintenance of the ostensibly over-heavy international community presence in Bosnia (even if it is not heavy-handed in practice) is in the Bosniacs’ direct political interests, and accordingly adverse to the interests of the Bosnian Serbs and Bosnian Croats. Thus the Bosniacs continue to press the Sarajevo narrative that international supervision is a continuing necessity to prevent the country’s collapse, even after so extended a period of time during which the country has been at complete peace.

Nevertheless this is a short-sighted view. Abolition of Bosnia’s fourth pillar of government – the use of international officials as imagined final arbiters over a dysfunctional system – is a necessary precursor for the country to be set on the right track. That is because abolition of this pillar will change the incentives of the Bosniacs to cooperate with their Bosnian Serb and Bosnian Croat counterparts. That process of cooperation and compromise – impossible now but possible if the international community departs – will lead to a new agreed constitutional structure, more effective, that accords the three parties respect for their relative interests but in a wholly more reasonable way than the current system, and one that will prove to be in all three groups’ common interests in the medium to long-term.

It is undeniable that consociationalism will remain in some way an aspect of the Bosnian body politic for a substantial time to come. Ethnic animosities, and the fear of the other, remain substantial. For as long as that is the case, and Bosnia’s citizens remain inclined to identify socially and politically more with their own ethnic groups than with the country as a whole, consociational protections will remain necessary to reassure everyone that the system will not turn against one group or the other. But the current consociational structure is far too elaborate to function effectively at the end of the second decade of the twenty-first century. A lot has been learned about post-conflict consociational structures since 1995, and it is time for Bosnia and Herzegovina to move on.

A system with fifteen Presidents, thirteen Prime Ministers, one Mayor with the powers of both, fourteen general legislatures, three constitutional courts and an almost innumerable array of competing law enforcement agencies, all for a country of some four million people, is obviously absurd. It needs to be reformed. Although I have clear ideas about how it should be reformed, it would be impolitic to state what they are as my observations would be automatically subject to capture by the ethnic group that perceives it has the most to gain out of the internationalisation of my opinions: just another species of the perverse dynamic found amongst international officials’ interactions with domestic politicians in Sarajevo at the moment. The only way to manage the problem is finally to abolish Bosnia’s fourth arm of government, international oversight; encourage the country’s three groups subsequently to negotiate reform of its constitutional system finally outside the shadow of international oversight (if you try to encourage this before abolishing the international presence, you will just create more wrecking incentives for the process); and to provide quiet, unaggressive mediation between the parties to help them whenever that might prove propitious.

This should be the international community’s plan to secure Bosnia’s European future. It seems likely that the fates of the remaining Western Balkan nations in joining the European Union will be decided together: the most difficult candidates, Bosnia and Herzegovina, Serbia and Kosovo, will join all at the same time. Hence in the interests of the peoples of all these states, Bosnia must be placed now upon a stable course. This dramatic change in international community policy towards contemporary Bosnia may justifiably be argued to be coming too late. But better late than never.

Matthew Parish is an international lawyer based in Geneva, Switzerland and a former UN peacekeeper. He has published two books and over 250 articles on the subject. In 2013 he was elected as a Young Global Leader of the World Economic Forum and he has was listed as one of the three hundred most influential people in Switzerland. He is currently a candidate of the United Kingdom of Great Britain and Northern Ireland for appointment to a position of Under Secretary General of the United Nations with an agenda for institutional reform.

The views expressed in this piece do not necessarily reflect those of TransConflict.

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