Historical and Political Background

run the federation through a centralised communist party, in the face of mounting nationalistic aspirations from the republican governments.²²³

6.1.2 The War 1991 to 1995

While Tito passed away in 1980, his legacy lasted until a series of events towards the end of the decade offset the gradual break-up of the federation. Against the backdrop of the fall of the Soviet Union and the demise of the Yugoslav Communist Party, a plethora of independent parties emerged. In 1990, multi party elections were held in Croatia and Slovenia, bringing a liberal-nationalist coalition to power in Slovenia, and the nationalist Croatian Democratic Union (HDZ) to power in Croatia under the leadership of Franjo Tudjman. In Serbia,

President Slobodan Milosevic abandoned his strategy to gain control over Yugoslavia through the existing structures of the Communist party in favour of carving out an extended Serbian territory and proceeded to encourage pan-Serb initiatives and radicalisation of the Serb population in Croatia and Bosnia and Herzegovina. Croatia and Slovenia, meanwhile advocated a looser federal arrangement with the existing republics.

A full account of the various events that led to the breakout of a full scale war in 1991 is not possible within the scope of this presentation.²²⁴ Suffice it to say, that the declarations of independence by Slovenia and Croatia on 25 June 1991 were countered by an invasion of Slovenia by the Serb-dominated federal army. Surprisingly, the Slovene army defended their republic successfully, and Milosevic had to abandon his plan to make an example of Slovenia.

By late August, the war scene had moved to Croatia. Bosnia and Herzegovina initially declared itself neutral. In January 1992, a peace settlement was negotiated for Croatia by the UN representative Cyrus Vance, and on the 15th that month, international recognition of Croatian and Slovenian independence came into effect.

The leaders of Bosnia and Herzegovina felt they now were left with no choice but to declare independence, as the alternative would have been to remain in a much reduced Yugoslavia under Serbian control. A referendum was held on 29 February and 1 March 1992 over independence for Bosnia and Herzegovina. About 64 percent of the electorate voted, including thousands of Serbs in major cities, even though Serb leaders had called for a boycott. Of these, 99.7 percent voted for independence. The following month, Bosnia and Herzegovina was recognised as an independent state by the European Community. War ensued as the Serbian Republic of Bosnia and Herzegovina and the Croatian Community of Herzeg-Bosnia were proclaimed and the fight for territorial control started²²⁵. In 1994, an agreement was negotiated between Bosniacs and Croats, creating the Federation of Bosnia and Herzegovina, consisting of a cantonal system covering the areas controlled by the two parties. This put an end to the war in Central Bosnia and brought Muslims and Croats together

223 Burg 1982: 131.

224 The presentation of the historical context is mostly based on Malcolm 1996 and Nystuen 2005.

225 Meetings had been held already in March 1991 between Tudjman and Milosevic known as the Karadjordjevo meetings on dividing Bosnia and Herzegovina between their two republics but the existence of an agreement were later denied by the two.

in a united front against the Serbs. Various territorial options were discussed among the groups respectively, as among the international community. A year later, the Dayton Agreement put a final end to the hostilities.

6.1.3 Dayton: Institutions Based on Ethnicity

The Vance-Owen plan ²²⁶ had outlined a constitutional framework for Bosnia and Herzegovina based on a decentralised state with three recognised ‘constituent peoples’

(Paragraph 1). There was a clear understanding that only Bosniacs, Croats and Serbs fell under this category. The drafters in the Dayton Contact Group tried to keep this term out of the text, but this was not politically possible, and it was agreed to place the reference to constituent peoples in the preamble.

The Dayton Agreement, concluded in November 1995, represented a compromise between the three main groups’ institutional options.²²⁷ Annex 4 of Dayton serves as Bosnia and Herzegovina’s constitution. Bosnia and Herzegovina was set up as a weak federation consisting of a Croat-Bosniac entity, the Federation of Bosnia and Herzegovina covering 51 percent of the territory of the state, and the Serb-dominated entity Republika Srpska covering 49 percent. The Federation Bosnia and Herzegovina was divided into ten cantons, each with a separate constitution, a directly elected assembly, prime minister and ministries. The entities with their own parliaments and governments were allowed to establish special relations with

“neighbouring states” (the Republic of Croatia and the Federal Republic of Yugoslavia²²⁸).

The Dayton Agreement was designed to maintain a balance of powers between the three constituent peoples, Croats, Serbs and Bosniacs. Core elements in the power-sharing formula were a tripartite presidency with rotating chair, equal representation of the constituent people in the upper chamber of the state parliament, entity voting in the parliament (a double majority requirement) and the so-called vital national interest clause which may be invoked to stop certain types of legislation. These institutions and mechanisms will be discussed in detail later in this chapter.

The Dayton Agreement sets up an institutional system based on ethnicity, recognising the three main ethnic groups as ‘constituent peoples’, along with ‘others’ (including e.g. Romas and Jews). In making political representation based on ethnicity, the agreement discriminates against groups who either do not belong to or do not identify themselves as belonging to one of the three main groups. Furthermore, individuals will not be able to exercise the right to stand for election because they reside in an area where they constitute a minority.²²⁹ An international High Representative was established to monitor the implementation of the

226 The Vance-Owen plan was one of several proposals put forward by the European Community and UN to solve the conflict. Negotiations over the proposal were initiated by UN Special Envoy Cyrus Vance and EC representative Lord Owen in January 1993. In May, the plan was rejected by the Bosnian-Serb assembly.

227 Belloni 2009: 350-360

228 Which at the time consisted of Serbia including Kosovo, and Montenegro.

229 Only Serbs from Republika Srpska and Croats and Bosniacs from the Federation Bosnia and Herzegovina can be elected to the House of Peoples and the Presidency.

civilian aspects of the Agreement. Over time, the High Representative acquired increasing legislative and political powers, including the authority to remove local elected officials.

6.1.4 Political Deadlock

The institutions of the Dayton Agreement are set up as to allow each of the constituent peoples to veto legislation that is perceived to go against their ‘vital interests’. There is, however, no exact definition of what these ‘vital interests’ consist of but the Constitutional Court has made interpretations based on a number of cases. In addition, the three constituent peoples have divergent attitudes towards the Dayton Agreement. While the Bosnian Serbs tend to be in favour of maintaining the status quo, which grants them the right to govern their entity without external interference on a number of issues, Bosniacs favour a stronger unified government in Sarajevo. The Croats, on the other hand, are outnumbered within the Bosniac-Croat entity and are often outvoted by the majority. The nationalistic parties favour more independence of the Croats, some even a separate entity. Fourteen years after Dayton, Bosnia and Herzegovina is ridden by political deadlock. Political debates mainly centre on the intertwined issues the phasing out of the High Representative, the possibility of EU membership and constitutional reform.²³⁰ The debate over constitutional reform will be thoroughly discussed later in this study.

6.1.5 Role of the International High Representative

The mandate of the High Representative is laid out in the Dayton Agreement’s Annex 10, Article 2. Its function was to monitor the implementation of the peace settlement and to co-ordinate the activities of civilian organisations and agencies in Bosnia and Herzegovina. The role of the High Representative has developed over time; a key task for the High

Representative has become to ensure that the state and entity institutions of Bosnia and Herzegovina are operating efficiently. In 1997, the requirements of Annex 10 was elaborated to include the removal of elected officials who are seen to violate legal commitments and the Dayton Peace Agreement, and impose laws on own discretion, if the legislative bodies of Bosnia and Herzegovina fail to do so, the so-called Bonn powers. As of mid 2010, the High Representative has issued close to 900 decisions in constitutional, economic and judicial matters.²³¹ These decisions have provided controversies and are particularly detested by representatives of Republika Srpska, who see decisions by the High Representative as untimely interventions in Republika Srpska internal affairs. There are also questions raised by the public at large as to the long term affect of the Bonn powers decisions on empowerment and responsibility of elected authorities. The High Representative has been dealt several blows to his credibility, as is well illustrated by the flawed police reform process and his attempt to force the reform by resorting to using the Bonn powers.

230 See International Crisis Group 2009a: 4-5 for further details on the main points of contention. Other vital issues are a dispute over the ownership of state property, the status over the Brčko District, whether or not the 2011 census should include national or confessional identity, but these issues are not touched upon in this study.

231 All High Representative’s Decisions, http://www.ohr.int/decisions/archive.asp?so=d&sa=on.

6.1.6 Police Reform

In 2005, the European Commission required Bosnia and Herzegovina to reform its police force in order to conclude a Stabilization and Association Agreement (SAA) with the EU.²³² The reforms were an attempt to consolidate the entities’ police forces into one national force and were blocked by Republika Srpska prime minister. Key demands were related budgetary and legislative decisions, distribution of competencies between state and entity level on police related legislation and drawing of police districts. The demands seemed unreasonable to many Bosnians because they went beyond the practice of many EU member states, whereas the reforms would also erode the autonomy of Republika Srpska. After two years of unsuccessful attempts to coax Republika Srpska into compliance, the High Representative, Miroslav Lajčák, went for a full confrontation.

On 19 October 2007, Lajčák issued a decision instructing the legislative chambers to amend their rules of procedure by 1 December or face further Bonn powers impositions. The intent was to make it more difficult for one party or entity to block the operation of the Council of Minister and the Parliamentary Assembly. The decision was intended to be the first in a series of edicts to soften Republika Srpska. Instead, a crisis erupted when the Republika Srpska’s Prime Minister, Milorad Dodik, withdrew his ministers from the Council of Ministers and threatened to resign. As international efforts were directed at settling the final status of Kosovo, Lajčák backed down and settled for a compromise whereby no cross-entity police regions were established. In June 2008, the SAA was concluded, even though reforms had in fact not been implemented.

It is a stated goal that the Office of the High Representative (OHR) should eventually close down, but there are disagreements as to when. The High Representative is subsequently to be replaced by a “reinforced” EU Special Representative (EUSR), without the legal powers of the High Representative.²³³ Constitutional reform is one of the prerequisites for closing down the OHR and in particular a reform which would make the constitution comply with the ECHR decision of December 2009 (see below). There was a hope that this could happen before the 2010 elections but it showed impossible.

6.1.7 The April Package

In 2005-2006, the first comprehensive attempts at reforming The Dayton Agreement came about in response to a report by the Venice Commission, recommending that the government pursue a process of constitutional reforms in order to enable Bosnia and Herzegovina to make substantial progress towards European integration. As part of a private initiative by Bruce Hitchner, Chairman of the Dayton Peace Accords Project at Tufts University, Executive Director Paul Williams of the Public International Law and Policy Group and former Principal Deputy High Representative Donald Hays, Bosnian officials were presented with a series of proposals aimed at helping Bosnia and Herzegovina improve its EU candidacy and

232 Belloni, 2009: 364-365. See also International Crisis Group 2005a for a more thorough presentation of the police reform efforts.

233 International Crisis Group 2009a: 14.

enhance governmental efficiency on the state level.²³⁴ The leaders of all major political parties agreed to form a constitutional working group, with Hitchner, Hays and Williams as a secretariat to serve as an “honest broker”.

Negotiations took place in three phases, and among the vital issues were:

x A new format for the election of the presidency along with a reduction of its powers;

x Powers required for European integration to be provided to the state;

x Guaranteed representation of national minorities in the House of Representatives;

x A definition, and a mechanism to review of the use, of a vital national interests veto by parliamentary representatives;

x The strengthening of the Council of Ministers by transfer of key powers from the presidency;

x An increase in the number of members in both parliamentary chambers.

While the international community played an active part in facilitating the talks, the April process was chaired for and led by domestic actors.²³⁵ All major Serb parties, the Bosniac Parties SDA, the Croat HDZ BH as well as and SDP agreed on the reforms. However, it fell two votes short of the two-thirds majority needed for it to be passed in the House of Representatives. SBiH²³⁶ and the Croat HDZ 1990 (splinter party from HDZ BH) and independent MPs voted against the package in the House of Representative.²³⁷ 6.1.8 The Butmir Process

Antagonism peaked in June 2009, when the High Representative forced the Republika Srpska to retract a set of largely symbolic declarations critical of allegedly improper transfers of competencies from the entities to the state. Dodik complied, but later threatened a long-term withdrawal from state institutions.²³⁸ A similar stand-off took place in September 2009, when High Representative Valentin Inzko used the Bonn powers to impose eight laws, followed by a further law the next day by the Principal Deputy High Representative. It was a matter of days before Dodik rejected all nine laws and threatened to pull all Serb representatives from the national government if Inzko tried to impose any further measures. In response to the looming crisis, the US and EU attempted to broker a package deal including constitutional

234 Hitchner 2006: 127.

235 Sebastián 2007: 5.

236 SBiH was the only Bosniac party who withdrew from the latter stage of the talks. They rejected the package on formalistic grounds, arguing that the reforms would be “cosmetic” only, in that it did not aim to eliminate the Republika Srpska and entity voting. Secondly, they argued that the adoption of the April Package would implicitly amount to a ratification of the Dayton Constitution, which was never voted on by the Bosnian parliament. Sebastian, Leaving Dayton behind, p. 6.

237 Sebastián 2007: 6.

238 International Crisis Group 2009b: 3

reforms that would allow the OHR to close and push Bosnia and Herzegovina towards membership in the EU and NATO.

Negotiations were held at Camp Butmir on 8 and 9 October 2009, with a follow-up session on 20 and 21 the same month.²³⁹ The conference was hosted by Deputy Secretary of State James Steinberg and Swedish Foreign Minister Carl Bildt, (representing the Presidency of the EU), later joined by the European Commission commissioner for enlargement, Olli Rehn. The proposed amendment explicitly assigned defence and intelligence to the state level. While The Dayton Agreement had defined the responsibilities of the entities (Clause 2), the Butmir proposals defined an additional set of “Shared Responsibilities”, including internal security, taxation, the judiciary and local self-governance. The proposals would also explicitly empower the state level “to undertake legal and political commitments required for the process of accession to the European Union including on matters that in accordance with other provisions of this Constitution are the responsibility of the entities”.

The proposed amendments²⁴⁰ would strengthen the Parliamentary Assembly and modify its structure: the House of Representatives would have 87 members (instead of the current 42) and be responsible for legislative activity. The House of Peoples would have 21 (instead of the current 15) members appointed from among the members of the House of Representatives and would see its role limited exclusively to deciding on issues of ‘vital national interests’.

Out of 87 seats in the House of Representatives, three seats would be reserved for representatives who do not define themselves as members of the Constituent peoples (i.e.

those belonging to the group of ‘Others’)²⁴¹. In the House of Peoples six seats would be earmarked for each of the three constituent peoples respectively, leaving three seats open for members who did not necessarily belong to a constituent people. Candidates were to be able to run for all seats of the House of Peoples and the presidency from anywhere in the country.

The proposed amendments would also change the structure of the Presidency, which would be composed of one President and two Vice-Presidents and be elected by the House of

Representatives. The President and the Vice-Presidents may not be members of the same Constituent peoples. The candidates for the Presidency would be nominated by the House of Peoples. The President’s and the Presidency’s powers would be decreased in favour of the Council of Ministers, which, according to the proposed amendments, would be presided over by a real Prime Minister.

239 International Crisis Group 2009b: 4

240 See for example the Report of the Committee on the Honouring of Obligations and Commitments by Member States of the Council of Europe (Monitoring Committee) of 17 December 2009 “The functioning of democratic institutions in Bosnia and Herzegovina”

241 It is not easy to see the justification for this particular element since there is no discrimination built into the election of the House of Representatives.

While so-called ‘entity voting’²⁴² would continue, the overall effect of the amendments would be to concentrate state power within the House of Representatives. Furthermore, the state would be given authority to assume responsibilities and make commitments in the EU accession process.

The package was eventually rejected by all parties except the Bosniac Party of Democratic Action (SDA).

6.1.9 The European Court of Human Rights decision

A salient issue is the status of ‘others’ (non-constituent peoples), which are constitutionally barred from running for the presidency. The debate has gained momentum after a court case in June 2009. Jakob Finci, head of the Jewish community and Bosnia and Herzegovina’s ambassador to Switzerland, and Dervo Sejdić, a member of the Roma Council, appealed to the European Court of Human Rights to overturn laws that prevent them from running for president. They argued that Bosnia and Herzegovina’s constitution violates the European Convention on Human Rights and United Nations conventions and international treaties. In December, the Court ruled in favour of the plaintiffs. This has caused a debate on whether Bosnia and Herzegovina should one, three, or even four presidents on state level. At the time of writing, the court decision has not been implemented.

6.2 The Quota Arrangements and Other Power-sharing Elements

In document Electoral Quotas and the Challenges of Democratic Transition in Conflict-Ridden Societies (sider 154-161)