In this, the second in a series of essays about political reform in post-war Bosnia, the author advances the argument that comprehensive constitutional reform is required to give Bosnia the slightest possibility of future survival. Although attempts at constitutional reform were made in the past, they were not made with a sufficient eye to detail; nor were they were made in the right direction.
By Matthew Parish
Bosnia and Herzegovina has one of the world’s most notoriously dysfunctional constitutions. Although at 5,000 words the document is also one of the world’s shortest constitutions, brevity is not always a benefit. The constitution was prepared by US lawyers overseeing the peace negotiations ending the Bosnian war in Dayton, Ohio in November 1995. It was written in English, not an official language of Bosnia and Herzegovina, and it came into force not by virtue of a resolution of a parliamentary assembly but as an annex to an international treaty, the Dayton Peace Accords.
Since then, the constitution has caused recurrent friction between the political representatives of Bosnia’s three national peoples, the Bosniaks (predominantly Bosnian Muslims); the Bosnian Croats, and the Bosnian Serbs. It creates a system of weak federal institutions that sit over a complex array of sub-federal structures. Bosnia’s war involved three warring parties. The Bosniaks and Croats settled their differences under US supervision in the so-called Washington Agreement in 1994, which created a system of 10 cantons, some of which were predominantly Bosniak, some Croat and one in particular, Herzegovina-Neretva canton, was mixed: it included the divided city of Mostar that had seen fierce fighting. It was anticipated that when peace came with the Bosnian Serbs, this cantonal structure would be expanded to include Serb cantons.
However the Serbs refused to join this arrangement, having fought their way to a position in which a single Serb administration governed approximately 50 per cent of Bosnia’s territory. They demanded that a unitary Serb sub-sovereign structure sit under the state without being divided into cantons. The Serbs had no need for cantonal divisions within their territory, because they were not divided as were Bosniaks and Croats – and as were Bosniaks between themselves; different Bosniak political groups were dominant in the central capital Sarajevo as compared with the northern city of Tuzla. Hence Bosnia was divided into two “Entities”, one called the Federation of Bosnia and Herzegovina and itself subdivided into 10 cantons; and the other called Republika Srpska.
The territory of Bosnia and Herzegovina was split between the two Entities in the ratio 51 (Federation) to 49 (Republika Srpska), and much haggling took place, in a complex give-and-take negotiation, to reach this agreed formula on the ground. All of these units had their own constitutions. The dividing line between the two Entities was sufficiently jagged that neither Entity could really act as an independent state; the two Entities were sufficiently locked into one-another’s territories to render subsequent secessionist movements impractical. That has always been the principal reason why the artificial Bosnian constitutional structures have not totally collapsed over the last 25 years.
The central government
The central government’s constitution was intended to sit on top of all these structures, in a weak federal arrangement. Nevertheless it would have its own collective Presidency, composed of one Bosniak, one Croat and one Serb, the Chairmanship of which would rotate between the three members. This reflected a Yugoslav-era tradition of a collective rotating Presidency. There would also be two legislative chambers, the lower one consisting of 42 members (the House of Representatives) and the upper one of 15 members (the House of Peoples).
In general, in federal systems of government lower chambers are designed to ensure that each electing constituency receives a number of representatives proportionate to their size. Hence the US Constitution requires that the Representatives in the US House of Representatives “shall be apportioned among the several States according to their respective [population] numbers”; as a matter of practice these numbers are revised subsequent to a census every 10 years. There is a statutory cap of 435 members, which entails that subsequent to the 2010 census (the latest used at the time of writing) there is currently an average of one representative for approximately 720,000 people.
The House of Representatives
However the constitution of Bosnia and Herzegovina does not provide for calculation of the division of members across the country in this proportionate way relying upon census figures. Instead it says of its members, just that there shall be “two-thirds elected from the territory of the Federation, one-third from the territory of the Republika Srpska”. These round figures emerged at the end of three and a half years of bloody war with 100,000 deaths and up to 2 million (half the country’s population) displaced people. The division of the House of Representatives electoral units into two blocs, two-thirds and one-third, did not represent anything more than the roughest of estimates as to the relative number of people living in each Entity. Nobody knew for sure.
The last census before the war, in March 1991, had concluded that the population of Bosnia and Herzegovina was 4.38 million, of 43% were what came to be known as Bosniaks (Bosnian Muslims); 31% were Serbs; and 17% were Croats. The approximation giving rise to the constitutional formulation for how many members of each Entity would be entitled to was based upon the assumption that all Serbs (and only Serbs) lived in Republika Srpska; nobody from the other two ethnic groups did (virtually all the territory in the country had been comprehensively ethnically cleansed in one direction or another); and therefore one third of the House of Representatives was about right for the Republika Srpska based upon the 1991 census. As for the balance between Bosniaks and Croats, the legal structures of the Federation could work out how to divide the two-thirds of the members of the House of Representatives between themselves. And that is what the provisions of the Bosnian Constitution relating to the House of Representatives provided for.
But populations never stay still. People move around the country, and they move abroad. Moreover the assumption that the 1991 census figures remained accurate in November 1995 was pure speculation. The only way to test whether the two-thirds to one-third division was proportionate to population figures was to have another census. Nevertheless perhaps none of this mattered. The Dayton Constitution was not intended, quite possibly by anybody present at the Dayton peace negotiations, to last more than a couple of years or so, pending negotiation of some new constitutional arrangement that would be more satisfactory. The problem was that over the years, that renegotiation did not happen. We will explore later why it did not; but as of 2021 the Bosnian constitution has been amended only once, in 2009, to recognise an anomalous sub-sovereign unit called Brcko District that had been created after the Dayton Peace Accords by a US lawyer called Roberts Owen and to which we will return.
In the immediate aftermath of war, Bosnia and Herzegovina was under constant threat of political dissolution into three or more units representing each of the Bosniaks, Croats and Serbs, and the presumed return to warfare this entailed because none of these units were independently geographically credible. Hence the international community, in both its military and civilian aspects, found themselves upholding the Dayton constitution against secessionism. An international civilian overseer, called the High Representative, started forcing domestic politicians to participate in the dysfunctional institutions of the Dayton constitution, that were roundly being ignored after the peace accords had been signed. Hence the international community became the protectors of the Dayton constitution, and it was never re-negotiated. Instead a document intended to last perhaps two years remains in force to this day, over 25 years later.
Given that the Dayton constitution and its crude two-thirds to one-third division of members of the House Representatives was staying in place far longer than anyone had anticipated, everyone understood that having another census might call the constitutional formulation for the House of Representatives into question. One of the uncomfortable truths that people started to understand was that the proportion of people living in the territory of Republika Srpska was substantially more than 33%. Moreover Republika Srpska, from 1998 under a newly appointed and little-known moderate Bosnian Serb Prime Minister called Milorad Dodik whose rise to power was supported by the international community (how times change), started a quiet but substantial programme of inviting repatriation to Republika Srpska of Bosniak refugees under attractive financial and reconstruction conditions. And a lot of them went.
The reason Dodik did this was straightforward electoral mathematics: Bosniaks returning to the territory of Republika Srpska would vote, if not for his comparatively moderate Serb political party SNSD, then for Bosniak representatives in the National Assembly of Republika Srpska (a unicameral parliament for that Entity) who would be more likely to vote with his moderate coalition than with the more fundamentalist Bosnian Serb political party, SDS, that was demanding something akin to Bosnian Serb purity within Republika Srpska. In this way amongst others, Dodik gradually built his own election-winning coalition. Since 2006 he was not been out of office, either as Bosnian Serb Prime Minister, Bosnian Serb President or member of the tripartite state-level Bosnian Presidency.
The 2013 Census
As the population statistics gradually but inexorably shifted in Dodik’s direction, he kept on pressing for a new census the results of which he anticipated would call into question the assumptions of the Dayton Constitution. While the other two groups sought to oppose his calls, a new statewide referendum was ultimately inevitable and it was held in 2013. It confirmed several things that everyone had privately known but nobody wanted to admit for fear that it demonstrated Bosnia’s constitutional order to be critically faulty. Bosnia’s population had dropped dramatically since 1991; the country only now had 3.35 million residents. The reason is that Bosnians had left this impoverished post-war country forever, never to return. They had done this either as refugees during the war or as economic migrants since the war.
Contrary to a series of assumptions in the Constitution, pursuant to which Bosnian Croats were assumed to be entitled to representation on the assumption that they amounted to 33% of the population, the 2013 census concluded that they were only 16%. The population of Republika Srpska turned out to be some 40% of the population of the whole country; but crucially, 20% of the population of Republika Srpska were revealed to be Bosniaks. Assuming that after the wartime ethnic cleansing and war crimes the number of Bosniaks living in Republika Srpska as of November 1995 was approximately zero, this group represented returning refugees. Accordingly the constitutional formulation for the relative number of representatives from each Entity to the House of Representatives has been revealed now to be wrong, and it must be reformulated. This is not the usual starting point from which discussions of constitutional reform in Bosnia and Herzegovina are initiated, but it may be the most rational and compelling.
Nevertheless a change to the formulation for members of the House of Representatives has not occurred since 2013, because Bosnia’s constitution is replete with features that give representatives of each ethnic group vetoes on amendments. Therefore an amendment to update the composition of the House of Representatives, that prima facie benefits Republika Srpska (but also of course it benefits Bosniaks who have returned to Republika Srpska and want to be adequately represented in state institutions) cannot be enacted on its own. It must be part of a “give and take” deal. The principal mistakes made by the well-intentioned international community representatives over the years who have pushed for various kinds of constitutional reform is that they have sought to solve individual constitutional problems, rather than dealing with constitutional reform as a package. Any one constitutional reform cannot be advanced on its own, because it will be perceived as benefitting one party over another and hence it will be blocked. Only packages of reforms, that give and/or take something to all the parties, represent the political space for compromise.
The House of the Peoples
The next constitutional institution we should turn to, that is substantially more dysfunctional than the House of Representatives, is Bosnia’s upper legislative chamber, the House of Peoples. Pursuant to the constitution this institution has 15 members and legislation must pass it in order to become law. Its 15 members are specified by the Constitution to be five Bosniaks, five Croats and five Serbs. Any one of the groups can block draft legislation proposed by the House of Representatives, on the basis that it infringes upon a “vital national interest” of one of the constituent peoples. This phrase is not defined, and in the event of deadlock the Constitution calls for referral of the issue to the Constitutional Court under unclear terms of reference. The House of the Peoples plays little to no role in legislative drafting or initiative; it is by its definition a blocking mechanism rather than an enabling one.
The very concept of the House of the Peoples was declared as inconsistent with European human rights standards in the landmark European Court of Human Rights judgment, Sejdic and Finci v Bosnia and Herzegovina, in 2009. The applicants in that case were Roma and Jewish, two minority groups in Bosnia and Herzegovina. Their principal complaint was that as Bosnian citizens they were ineligible to stand for election to membership of the House of the Peoples, because the Constitution prescribes that the members of that body are Bosniaks, Croats or Serbs (five of each). The European court in Strasbourg, in declaring these constitutional provisions incompatible with the applicants’ human rights to participate in a democratic procedure in a non-discriminatory way, considered in some detail whether the design of the House of the Peoples was proportionate to a goal of maintaining peace and constitutional order.
The Venice Commission, an international advisory body on constitutional law originally established to assist with constitutional issues in emerging markets after the Cold War, had already studied the issue and the European court quoted their analysis, with approval, in its judgment. The Venice Commission had considered two alternatives to the existing structure of the House of the Peoples. One was to abolish the House of the Peoples in its entirety, and vest the “vital national interest” blocking veto in the House of Representatives. The second was to establish a genuine bicameral legislative chamber. The Commission noted that in federal systems, the function of a second chamber is typically to provide more than proportional representation to smaller sub-sovereign units within a federal system.
A Bosnian Senate
The House of Peoples could achieve this role if it were to remove the membership criteria relating to membership of an ethnic group; and if a certain proportion of members were prescribed to be from different cantons, Entities or regions of the country. Fifteen is barely large enough; 31 might be appropriate, giving ten seats to Bosniak-majority cantons, ten to the Republika Srpska, ten to Croat-majority cantons and one to Brcko District. In conjunction with reforms to the House of Representatives, a balance might be found between proportionate representation (in the House of Representatives) and representation of political regions who consider that their voices are not heard in national institutions, in a new House of Peoples that we might tentatively rebrand as Bosnia’s Senate.
Whether a model equivalent to the vital national interest veto (but better defined) is maintained in the Senate or transferred to the House of Representatives can remain an open question for now on this bicameral model; but the argument to transfer it to the House of Representatives might be that it is better that such issues, should they exist at all, be flushed out earlier on in the legislative process and therefore should be addressed in the legislative assembly predominantly responsible for initiation of legislation. There may be counter-arguments. We will see what what positions may emerge.
Establishing a Senate along such principles has another advantage; it dissolves to a substantial extent the otherwise interminable and irresolvable dispute as to whether the Bosnian Croats ought to have a “third Entity”. So the argument goes (and always has gone), if the Serbs have their Entity (Republika Srpska) and the Bosniaks have “their” Entity (the Federation, because they control a majority of the cantons in the Federation) then the Croats seek their own Entity, the presumed name for which might be Herzeg-Bosna, as a singular sub-sovereign unit that the Washington Agreement denies them. Within a Bosnian Senate structured to recognise the Croat-majority cantons as a separate electoral unit, those cantons would receive formal recognition in the state-wide structure and substantially greater representation in an operative chamber of the state legislature.
A Senate, with geographical rather than mere nominal ethnic representation, would guarantee Croats representation not just in name but as representatives of territory. This is a safer form of protection for them than their current status in the House of the Peoples, where Bosniak-leaning Croats by name can be voted into office by Bosniaks as happens with the Croat member of the tripartite Presidency, Zeljko Komsic (of whose votes some 95% are Bosniak; he is a member of a Bosniak political party).
A third Entity? Almost, but not quite
The state constitution may also expressly provide for a possibility that has always theoretically been on the table but has not yet taken place, namely that individual cantons may form collective arrangements with other cantons for their common self-government, subject to a series of provisos to the effect that the arrangements are consistent with the Bosnian constitution. This way, if Croat cantons want to unify under a government structure akin to a third Entity, then the Constitution permits them to do so. But the political work of so unifying is for the Croats to undertake themselves.
Moreover mischief sometimes emanating from Republika Srpska, to the effect that the Bosnian Serbs insist that the Croats have their own Entity (the principal reason Banja Luka insists upon this is presumably to slow down any process of centralisation of powers in the state, by creating or emphasising a dispute between Bosniaks and Croats as to the operation of the Federation) can be defused.
The Bosnian Croats may organise themselves into such a structure if they are willing to give and take (some Prime Ministers of some cantons would have to give way to a single Prime Minister governing the various Croat-majority cantons, and so on) but this will require cooperation and negotiation between the Croats, and it may or may not happen. If it does not happen, then it will be nobody’s fault but the Croats. They are given the constitutional opportunity to do this, but not the constitutional obligation. Under this model, the Serbs have nothing further legitimately to say about the matter.
The tripartite Presidency
The other constitutional institution of Bosnia and Herzegovina that the Sejdic and Finci judgment condemned as discriminatory is the rotating Presidency. The constitution is explicit that the three members of the Presidency must be a Bosniak, a Croat and a Serb respective. Mr Sedjic and Mr Finci complained that they were constitutionally disenfranchised from this office as well, because as Roma and Jewish they were in none of the prescribed categories. Their complaints were upheld by the European Court; it is unthinkable that in modern Europe a person can be disenfranchised from the position of an elected Head of State in this way.
The Venice Commission had proposed two alternative methods to correct this constitutional inequity. One was to abolish the tripartite Presidency and replace the system with a single President, potentially together with a proviso that a President must not be from the same ethnic group as the prior President (or the prior two Presidents, depending upon how far one wants to go). This approach is probably undesirable precisely because the notion of a multi-member Presidency representing different geographical units was a familiar Yugoslav legal tradition.
The other alternative the Venice Commission proposed was to maintain the tripartite Presidency but to remove the specifications as to the ethnicities of its members and instead to add the proviso that no member of the Presidency may be of the same ethnic group as another member. This sort of proviso is unwieldy, because people may change ethnicities and/or ethno-political orientation. Hence we end up with a person in the position of Mr Komsic, the current Croat member of the Presidency but elected by Bosniaks and not by Croats. The current regime makes Croats feel disenfranchised; they feel that their representative in the Presidency is stolen by quirk of the constitutional wording for electing members of the Presidency, which prescribes that one member shall be elected from Republika Srpska and two from the Federation. Hence the Croat complaint is that the Bosniaks get two members of the Presidency, the Serbs one and the Croats zero.
The solution to this problem is both to delete the ethnic criteria for membership of the Presidency as well as at the same time more finely dividing the territorial prescriptions for electing each member. The Constitution would have to read with words to the effect that one member of the Presidency is elected from Republika Srpska, one from cantons A, B and C from the Federation and one from cantons D, E and F from the Federation.
Herzegovina-Neretva and Brcko
For the ethnically divided canton of Herzegovina-Neretva, incorporating the city of Mostar, electors might be invited into which electoral process they wanted to participate, on an individual basis: whether they wished to participate in the “Croat cantons” election of President, or the “Bosniak cantons” election. While not entirely neat, special arrangements are probably appropriate for Herzegovina-Neretva canton based upon twenty-five years of problematic post-war relations between the Bosniaks and Croats sharing occupation of a divided Mostar.
A similar regime could apply to citizens of Brcko District, a Bosnian quasi-Entity brought into existence by an arbitration process in 1999. Because the parties to the Dayton Peace Accords could not agree into which Entity the Brcko area in the north of the country, serving as the sole Bosnian land bridge between the two parts of Republic Srpska, the Dayton agreement delegated the issue to arbitration and the principal arbitrator, Roberts Owen, a sometime State Department lawyer who had been present to advise US diplomat Richard Holbrooke at Dayton, came up with the novel solution that Brcko would be treated as part of both Entities, on a type of condominium theory.
Brick would have its own local institutions, rendering its de facto geopolitical status within the country as very similar to an Entity. Brcko District, as it became known, is not a large place at all, with a population according to the 2013 census of some 83,500. Nevertheless it is multi-ethnic in the sense that all of Croats, Serbs and Bosniaks live within the District, generally peacefully, and the District’s governing structure prescribes a power-sharing arrangement between representatives of Bosnia’s three constituent peoples. Nevertheless the Statute does this subtly, without referring to those peoples by name.
This is essentially what the European Court declared as the proper approach to addressing complaints of constitutional disenfranchisement or inequality. While it is understood that federal government institutions in a multi-ethnic country may need to embrace some sort of more or less informal power-sharing arrangement between the ethnic groups, a constitution cannot and should not prescribe that. It cannot, because doing so will inevitably discriminate between people; it should not do so, because any ethnic formulation is likely to be lazy in the sense it will not be able to keep up with subsequent changes in ethnic composition or population proportions. Hence a constitutional clean scrub is now necessary to replace direct references to ethnic groups with references to territory or to circulation of posts, in a fairly similar way to what was done in establishing multi-ethnic government structures in Brcko.
In passing it might be worth noticing that in Brcko District the position of Mayor (the senior executive post) rotates between the three ethnic groups by consent, as do a number of other senior positions, even though there is nothing in the Statute of Brcko District (the region’s constitutional document) that prescribes this. That in itself rather indicates that the principle of rotation may in many state institutions just take care of itself without voluminous and clumsy textual formulations trying to hard to capture the notion unambiguously. In national elections, residents of Brcko District can elect which Entity they are citizens of, and that principle could likewise be brought to bear in Herzegovina-Neretva. Brcko District has already been constitutionally recognised in 2009 constitutional amendments (the only amendments to the 1995 document to date), and those constitutional provisions are something that does not obviously need to be rewritten.
The Constitutional Court
The final state institution in respect of which the Bosnian constitution needs to be amended is the Constitutional Court. This looks harder than it really is, but we must recount the problem. The Constitution provides that the Court will have nine Judges, of which four are appointed by the legislature of the Federation of Bosnia and Herzegovina, two by the legislature of the Republika Srpska, and three, international Judges, by the President of the European Court of Human Rights. So there are two Judges from each ethnic group, and three foreigners.
Allegations of corruption have been made against the Constitutional Court; but that is true of many Bosnian institutions and the levels of corruption in the country are high. Alas one cannot legislate corruption away by constitutional amendment. But several arguments are made about the composition of the Court in this context. Firstly, some members of the international community assert that the presence of international Judges makes the Court less corrupt. Secondly, Republika Srpska complains that the international Judges always vote with the Bosnian Judges, forming a 5:4 majority, so the Croats and Serbs on the Court are outvoted. Thirdly, some complain that the Bosniaks could scarcely be happy if the international Judges were replaced with a system that provided for three Bosniak Judges, three Croats and three Serbs; because then the Croats and Serbs could/would consistently outvote the Bosniaks six to three.
One might think that this mist of differing arguments renders reform of the Constitutional Court’s composition, to remove the constitutional anomaly of having foreign judges on a domestic constitutional court, exceptionally difficult. But it is not so, when one looks more closely at the Court’s operation. In practice most cases are referred to a “Grand Chamber” of the Court, which is the six domestic Judges sitting without the international ones. It has been reported to this author that transition of cases from the plenum (where all Judges sit) to the Grand Chamber has been a stepwise process; and that “over 95%” of cases are now resolved by the Grand Chamber. Under the Rules of Court, certain sorts of case may be decided by the Grand Chamber in the event that five out of six of the domestic Judges concur upon an outcome. This suggests that all of the Bosniak, Croat and Serb Judges are in fact agreeing with each other the vast majority of the time.
If this statistic is even vaguely close to the truth, then it entails two things. Firstly, the Court is not in fact nearly as divided upon ethnic lines, in the vast majority of the cases, as its detractors might imagine. Secondly, the international Judges, imagined by some to dominate the operation of the Court, are in fact more interesting by virtue of their omission from the greater majority of the cases. The formation and development of a Grand Chamber, the purpose of which appears to be to isolate the international Judges from the greater majority of the Court’s work, is something one would naturally expect of experienced jurists on a country’s highest court. Those jurists might ordinarily be forgiven for considering the packing of their court with three foreigners whose votes, taken together (where they are present in plenum, the three international Judges almost always vote together), are able to swing the Court’s decisions one way or the other, as inappropriate or even as an affront to their judicial sovereignty.
Twenty-five years on from the Dayton Peace Accords, the presumed emergency measure of stacking Bosnia’s Constitutional Court with foreigners to overcome ethnically motivated blockage of the Court’s decisions, inserted into the Dayton Peace Accords, may appear to domestic and international jurists alike as an anachronism, much as is the Office of the High Representative, the country’s international overlord who may appoint and dismiss from office, and impose legislation, over the decisions of the democratic institutions of state. The complaint has been made to this author, whether accurate or not it does not matter because it is a politically compelling perception, that the international Judges on the Court are “OHR Judges”, who answer to the High Representative and pursue his dictates. Such limited evidence as exists to this author, incidentally, suggests that this is not the case and that the Office of the High Representative has come into conflict with the international Judges on a number of occasions because those Judges refuse to issue judgments in accordance with the requests / requirements of the High Representative’s staff.
How to remove the International Judges
It is this author’s view that if the Court can function without the international Judges 95% of the time, then it can function without the international Judges 100% of the time. The problem in achieving this overdue removal of the international Judges from the Court (and in saying this no criticism is intended of those Judges; it is just time for them to go) is that the relevant constitutional provision anticipating removal of the international Judges requires a piece of state-level legislation; and it anticipates replacement by the 3:3:3 system for the Court discussed above.
The sudden descent upon the Court of three entirely new Judges, each representing a new ethnic group, at the same time as other constitutional amendments are enacted, is risky. It might unleash ethnic division within the Court, unsticking a sense of common purpose that has been formed between the current six domestic members of the Court. Like all Court-packing proposals, it is inadvisable; constitutional and supreme courts are better left to evolve gradually than through revolution. Removing three Judges and replacing them with three new Judges all at once might have unforeseen consequences and might disrupt the delicate political arrangements in the operation of the Court’s Grand Chamber.
Moreover the fear that the Serb and Croat Judges might band together to defeat the Bosniak Judges on a 3:3:3 court would be likely to encourage a Bosniak plurality legislature to veto the change, because Bosniak politicians are afraid of some change in the balance of the power on the Court that they do not wish to lose. For this reason, amendment to the composition of the Constitutional Court needs to be one amongst a package of constitutional amendments, including far clearer a description of what Bosnia’s federal government competencies actually are and hence on what issues the Constitutional Court may rule (and on what issues they may not – typically they should not rule where the lawsuit involves an issue of government properly assigned to a sub-sovereign legal of government, save to confirm as much).
Much of the domestic concern relating to the Court is that it has been overstepping a mandate typical of a Constitutional Court, to rule upon political issues of direct confrontation between the Entities and/or ethnic groups. A clarification of the Court’s proper jurisdiction, and adjustment to the provisions relating to the Court’s standing (i.e. the question of which sorts of governmental party can raise which sorts of dispute before the Court) might serve to ameliorate concerns that with the departure of the international Judges, the Court risks becoming more politicised.
One proposal this author has been entertaining is constitutional reform to shrink the Court to six Judges, rather than to maintain it at nine. The advantage of shrinking the Court (so that it remains 2:2:2 in ethnic composition as a matter of practice), is that under the rule that a majority of Judges are needed to pass a decision, that majority comes out as four. This means that in principle two ethnic groups, voting unanimously, could outvote a third; whereas if the numbers of Judges is nine, then unanimity of two ethnic groups is not necessary to outvote a third. This sort of de facto supermajority might cause the Court to work a little more slowly in ethnically contentious cases; but it might reduce any sense of alarm that the Court is, by divestiture of its international Judges, liable to turn into a frequent political football. Moreover such an amendment would mean that the 95% of cases in which the Grand Chamber currently operates would continue without disruption.
The various constitutional amendments discussed in this paper are intended to provide Bosnia and Herzegovina with an updated and functional constitution sufficient for the twenty-first century. An amended constitution would be something the international community might seek to fix in place before it departs the country. Bosnia needs a better constitution before being left to its own devices.
Such a constitution would be substantially longer than 5,000 words; many of the problems of Bosnia’s constitution arise out of vagaries in its language (for example the list of responsibilities of the Presidency; and the list of responsibilities of the central government as opposed to its sub-sovereign units) or because simple solutions, imagined adequate in 1995 (for example identifying ethnic groups rather than territorial units), turned out not to work with the benefit of later experience.
The purpose of drafting constitutional amendments, and initiating a discussion about an amendment process, would not be to prefer one ethnic group’s agenda over another. If that were the route pursued by the international community, then it would be condemned to failure. Nor should the debate revolve around centralisation versus decentralisation. Every such debate about the politics of post-war Bosnia has been doomed to stalemate. Instead a package of constitutional reforms should be understood as a process in which each of the three sides in the debate give and take on issues important to them. The approximate balance of powers at the end of the process may well be about the same; but the structure is more likely to work in the absence of ceaseless international supervision.
If the international community is serious about closing the Office of the High Representative, permitting Bosnia and Herzegovina to pursue its own course towards Euro-Atlantic integration with the assistance of relevant international organisations, and leaving in place a cohesive constitutional structure for a federal decentralised state for the parties to work within, then this is the sort of package of constitutional reforms that is needed. Without doubt there will be much to negotiate; but the issues are not so complicated as to defeat either Bosnians themselves or the international community officials who may guide and mediate this programme.
Matthew Parish is an international lawyer based in Geneva, Switzerland and formerly an employee of the Office of the High Representative of Bosnia and Herzegovina. He is the author of four books and over 300 articles in the fields of international law and international relations, and he has been named as one of the 300 most influential people in Switzerland, a Young Global Leader of the World Economic Forum and he is an Honorary Professor at the University of Leicester. He is the Chief Executive of the Foundation for Development. www.development-foundation.org www.matthew-parish.com
The views expressed in this article do not necessarily reflect those of TransConflict.