Transatlantic Cooperation in Bosnia and Herzegovina: The Question of Constitutional Reform

Dominik Tolksdorf

Heinrich Boll Foundation

Since the end of the war in Bosnia and Herzegovina, the U.S. and Europe have shared a common interest to foster stability in the western Balkans region and to support the country’s progress toward Euro-Atlantic integration. This, however, overshadows the fact that there are some issues on which the U.S. and the European states do not completely agree, most prominently the role of the Office of the High Representative (OHR) in the country. This essay analyzes the divergent positions on the OHR and related issues, including the debate on constitutional reform in Bosnia. Being a highly relevant but also highly sensitive topic in Bosnia, a common transatlantic position on the issue is indispensable in order to achieve progress.

Transatlantic Disagreements on the Role of the OHR

Since 1995, Bosnia’s state-building process has been supported by a variety of international actors, among them the Office of the High Representative (OHR). The OHR oversees the implementation of the civilian aspects of the General Framework Agreement for Peace in Bosnia and Herzegovina (GFAP). In order to avoid any obstruction to the GFAP, the OHR can adopt legally binding decisions and dismiss public officials from their positions. These so-called Bonn Powers gave the international community the opportunity to regularly intervene in daily politics in Bosnia. In order to strengthen the state-building process, the OHR over the years has established new institutions, among other measures. This interventionist approach has long been supported by the European Union (EU) and its member states. However, in recent years, the OHR has been regarded by many European governments as an obstacle to further progress in the country, particularly regarding Bosnia’s pre-accession process with the EU. Many EU diplomats consider the OHR as an instrument of the past that symbolizes the postwar era, and which should be removed from Bosnia. By replacing the “push from Dayton” with a “pull from Brussels,” the role of the EU is to gradually increase while the OHR activities are to vanish. Consequently, in 2011 the EU de-coupled its EU Special Representative from the OHR and integrated the post into its reinforced EU delegation in Sarajevo.

The activities of the current EU Special Representative, Peter Sørensen, have also been welcomed by U.S. diplomats. The U.S., which still has a huge influence in Bosnia, has supported the EU’s efforts to take on a leadership role among the international actors in the country by and large in the past years. In 2008, the Peace Implementation Council (PIC), which directs the OHR, agreed on five conditions and two objectives—the so-called 5+2 criteria—that have to be met by Bosnia before the OHR will leave the country. The OHR closure has repeatedly been postponed, which led to transatlantic disagreements. Many EU member states, including Germany, France, Italy, Austria, and Sweden, as well as the European Commission and Russia are in favor of abolishing the OHR, even if the criteria are not yet met. In contrast, the U.S., the UK, and Turkey want to retain the OHR and criticize other PIC members for their attempts to dry out the OHR by reducing the funds and the personnel seconded to the office. Some observers interpret these steps as attempts to establish EU primacy in Bosnia without taking the real situation in the country into account. In fact, the different positions on the OHR are also the result of different perceptions of the security situation in Bosnia.

Many U.S. analysts fear that without international supervision, Bosnian Serb politicians will gradually turn away from the central state institutions and in the long run declare the secession of the Republika Srpska (RS) from Bosnia. The rhetoric of some Bosnian Serb politicians certainly hints in this direction and RS President Milorad Dodik in the past often threatened to hold in RS a referendum on its independence from Bosnia—which polls indicate would be approved. In addition, Dodik has increasingly challenged the legitimacy of institutions established by the OHR—particularly in the judicial and financial sectors—arguing that they were unconstitutional. Upon Dodik’s initiative, the RS parliament in April 2011 voted to call a referendum on the abolishment of the Bosnian State Court (which inter alia deals with war crimes) and the Prosecutor’s Office.[1] While High Representative Valentin Inzko warned that he would annul the planned referendum, Catherine Ashton, the EU’s High Representative for Foreign Affairs, brokered an agreement with the RS authorities. This led to a suspension of the referendum in exchange for the start of a “Structured Dialogue on Justice” in Bosnia. Although Ashton reassured Dodik that the EU would examine the RS politicians’ complaints on abuses in Bosnia’s justice system, the dialogue particularly focuses on the system’s improvement without putting the existing institutions into question. Nevertheless, the EU’s concession to start the dialogue has been criticized by U.S. analysts that accused the EU of backing down to RS politicians in order to stabilize the situation in the country.

Despite criticism from U.S. analysts,American diplomats have in most cases agreed to follow the EU’s approach of winding down international supervision in Bosnia and replacing it with an increased EU involvement. This is also the result of President Obama’s intention to improve relations with the EU. However, as outlined above, these trade-offs have their limits: Due to security concerns, the U.S. administration is currently unwilling to agree on closing the OHR as the office has the authority to remove officials that undermine the GFAP.[2] In addition, U.S. experts believe that there are still too many unresolved issues in Bosnia that even the European Union’s “accession panacea” would not solve. On the contrary, many EU and member states’ officials argue that time is ripe to abolish all special international institutions with executive mandates in the Balkans, including in Bosnia. The strengthening of “local ownership” is also important for the country’s EU integration: Any applicant state has to be completely autonomous and decide on reforms in its own ways. Thus, the only instrument that should be applied in the pre-process to membership is EU conditionality, which is to ensure that legislation is in compliance with the acquis communautaire.

The EU’s approach on Bosnia seems to gradually push the country toward EU candidate status and eventually membership negotiations. The underlying assumption is that once Bosnia is on a firm road toward EU membership, the situation in the country will stabilize. Once membership negotiations have begun, the European Commission starts a detailed screening of the applicant country’s capacities, examining if they are able to “take on the obligations of EU membership.” This is followed by regular negotiations on thirty-five chapters that focus on policy sectors like public finances or public procurement. Among other factors, this allows the EU to specifically examine the applicant’s political economy. The political economy is considered by many analysts as the root of many problems in Bosnia, as a patronage system allows the political elites to remain in power and preserve their influence. One could argue that many problematic issues that exist today in Bosnia might be resolved during membership negotiations, simply because once negotiations are started, the pressure of the Bosnian population on their politicians to finally agree on necessary reforms will increase.

The Necessity of Constitutional Reform

A closer step toward the EU, however, depends on progress on various issues. Among the matters that need to be addressed quickly is constitutional reform. Bosnia’s constitution was part of the GFAP and thus only meant as a temporary postwar structure. As such, it established a system in which ethnic differences and groups’ rights were acknowledged and which offers multiple veto points in the legislative process. Due to these complexities, the decision-making system is characterized by a very low number of adopted laws. Although the need for constitutional reform has been recognized among Bosnians and international officials for years, since 2006 several attempts to reach a compromise on reform have failed.[3] Apparently, the transatlantic partners lacked leverage on this issue. The situation seemed to change in December 2009 when the European Court of Human Rights (ECtHR) ruled in the so-called Sejdić-Finci case that Bosnia’s constitution is in violation of the European Convention on Human Rights (ECHR). According to the constitution, only ethnic Bosniaks, Serbs, and Croats can be elected as members of Bosnia’s tripartite Presidency or to the House of Peoples, the second chamber of Bosnia’s Parliamentary Assembly. The ECtHR regards this provision as discrimination against other citizens as it prevents them from holding high public posts. Consequently, the EU considers constitutional reform in compliance with the ECtHR ruling as a pre-condition for the country to become an EU candidate country.[4]

Although a special committee was established in Bosnia’s Parliamentary Assembly to discuss amendments to the constitution and the all-powerful Bosnian party leaders met in several summits, Bosnian politicians have so far failed to reach an agreement on the issue. To increase pressure on them, the EU presented Bosnia with a roadmap in June 2012 that contains a list of obligations that the country needs to comply with before it can submit a credible EU membership application. Among other issues, the document set a deadline for constitutional amendments; however, this has not been met. This demonstrates how difficult it is to reach a compromise on political issues in Bosnia, even though solving these problems is critical to the country’s EU integration, a goal which is more or less shared by all ethnic groups. The European Commission’s recent Progress Report on Bosnia, which was released in October 2012, was therefore rather sobering, concluding that “a shared vision among the political representatives on the overall direction and future of the country and its institutional set-up for a qualitative step forward on the country’s EU path remains absent.”[5]

Constitutional Reform: Renewed International Efforts?

It seems that there are two different interpretations by the international community of how to use the leverage of the Sejdić–Finci rulingThe case could be used to open a comprehensive debate on the various weaknesses of Bosnia’s political system. Such an approach would need to involve a high amount of political capital, leverage on Bosnian politicians, and probably much patience. But in the current situation and after the previous (unsuccessful) reform efforts, the appetite for such pro-active efforts seems to be limited among EU and U.S. officials. The transatlantic partners seem to agree that any form of constitutional reform has to be achieved in local ownership. EU officials have for years argued that the EU will not prescribe a constitutional order in Bosnia, but that a functional and efficient system is needed to adopt and implement EU legislation. They point out that all countries that joined the EU earlier had to amend their constitutions in the pre-accession phase. Constitutional reform in Bosnia is thus regarded as a gradual process. Assuming that further constitutional amendments will be adopted in the course of the pre-accession negotiations, it seems that the EU would already be satisfied with “credible progress” in constitutional reform. This could include a “quick fix” of the Sejdić–Finci ruling as a first step. In combination with establishing improved coordination and cooperation mechanisms at the state level, this would allow Bosnia to become an EU candidate country. However, the leverage of the Sejdić–Finci ruling would be lost, with no guarantees that the Bosnian politicians will compromise on further reforms in the subsequent pre-accession process.

Similar to the EU, U.S. diplomats seem to regard a comprehensive constitutional reform as rather unrealistic, particularly because of Bosnian Serb opposition. They therefore push for a reform of the political structures in the Federation. In October 2012, the U.S. embassy announced that the Federation entity needs to become more functional and efficient.[6] However, U.S. officials would not propose solutions to the political leadership, nor would they interfere in that process. This approach was welcomed by the EU delegation. In line with the focus on bottom-up processes in the country, the U.S. embassy also announced that it will organize a series of civil society meetings in the beginning of 2013 in order to start a wide-ranging discussion among Bosnian citizens. As a majority of people within all three ethnic groups do feel not adequately represented by their political representatives, a constitutional reform process which starts with a stronger involvement of civil society is reasonable. The EU and U.S. apparently agree on this issue, making transatlantic friction unlikely. However limited their future efforts to support constitutional reform will be, EU and U.S. officials should consider several points:

1. The U.S. and the EU have different degrees of influence in Bosnia. Whereas the European Union’s leverage mainly derives from offering EU membership, the U.S. influence is the result of its essential involvement in the 1990s and in the postwar years in Bosnia. It could be argued that whereas the U.S. administration has much more leverage on the Bosniak group, some EU member states have closer ties to the Bosnian Serbs and Croats. The different sorts of influence should be merged in order to push all three groups toward reaching a consensus.
2. Accordingly, there should not be any unnecessary debate on the leadership role in Bosnia. The Obama administration has invested heavily in improving relations with the EU, also with regards to international approaches in Bosnia. Such close cooperation should be upheld, also under a potential Romney administration. Close transatlantic cooperation and coordination is fundamental in achieving a compromise on constitutional reform (but also on the potential closure of the OHR). Before starting new reform initiatives, the transatlantic partners should agree on a common approach and the scope of a reform.
3. It seems essential that constitutional proposals have to be drafted by domestic experts with the involvement of civil society. International officials could advise and facilitate these processes, but should in no way directly interfere in them and pursue impatient “take it or leave it” approaches.
4. To some extent, Russian and Turkish officials have to be integrated in all transatlantic efforts in Bosnia. Without these two actors, the EU and the U.S. will not be able to put sufficient pressure on Bosnian politicians to reach a compromise on constitutional reform. However, this also pre-supposes that Russian and Turkish officials stop their often one-sided support for Bosnian Serb and Bosniak positions, respectively.
5. Similarly, neighboring Croatia and Serbia need to be kept involved to some extent. Both countries should be honestly interested in Bosnia’s stability, and thus act completely neutral regarding the support for Bosnian politicians. As an example, the Serbian government should make clear to RS politicians that their calls for secession from Bosnia will not be supported by any means.

Outlook

The beginning of 2012 saw some prospect of progress in Bosnia: Following political gridlock for fifteen months, the state-level government was formed in February 2012 that soon agreed on the adoption of two EU-requested laws (on state aid and on the holding of a national census in 2013). However, this momentum was not maintained, and the governments on the state level and in the Federation were soon reshuffled. Since then, the situation is stagnant. There are, however, also signs for slight optimism. First, the results of a census in April 2013, the first census since 1991, might change the overall picture in Bosnia and reveal the true demographic state of the country.[7] Second, the electoral victories of the SDS, the second biggest Bosnian Serb party, in the municipal elections in October 2012, might lead to changes in the political landscape of the RS. In the end, this could ultimately weaken the all-powerful position of Milorad Dodik in the RS and lead to a stronger willingness for compromises among Bosnian Serb politicians. These two factors might also have a positive effect on the future negotiations on constitutional reform.