Implementing Equality: The "Constituent Peoples" Decision in Bosnia & Herzegovina
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EXECUTIVE SUMMARY AND RECOMMENDATIONS
In July 2000, the Constitutional Court of Bosnia & Herzegovina made an historic ruling requiring the two entities, the Federation of BiH and Republika Srpska (RS), to amend their constitutions to ensure the full equality of the country's three "constituent peoples" throughout its territory.
This ruling offers a probably unrepeatable chance to push the Dayton Peace Accords (DPA) to their limits and to permit BiH to become a functional multinational state. As it stands, the Dayton model of three constituent peoples and two entities is inherently unstable. It can be pushed in one of two directions: towards recognising the right of the third and smallest people, the Croats, to have their own mini-state, or towards making both entities truly and effectively multinational. The "constituent peoples" decision represents the best means to reform the existing entities within the Dayton architecture and to move Bosnia in the second direction.
Opponents of effective Bosnian statehood quickly denounced this decision as an effort to overturn the DPA. Having succeeded in delaying serious debate about implementation for a year and a half, these factions are now determined to protect their fiefdoms by diluting the consequent reforms to the greatest possible extent.
Supporters of an integral Bosnian state, by contrast, hailed the Court's decision as a political and constitutional watershed, and have urged the domestic authorities to agree or, if necessary, the international community to impose far-reaching reforms that would improve upon the Dayton structures.
Since January 2001, the High Representative, the Council of Europe and several Western capitals have nudged the entities towards considering and drafting the constitutional changes necessary to implement the Court's decision. This process included the establishment of multinational constitutional commissions attached to the entities' legislatures, the engagement of political parties in drafting proposals of their own, consultations with international constitutional experts, a period of public debate, inter-party negotiations and, finally, a month of intensive haggling in the Office of the High Representative (OHR).
The parties struck a political deal in Sarajevo on 27 March 2002, agreeing a package of precepts and principles to be embodied in both entities' constitutional amendments. Having superintended the marathon bargaining sessions, the High Representative, the U.S. Ambassador and the Spanish Ambassador (representing the EU presidency) praised the parties for having had the courage to compromise, and swore to see that the Sarajevo Agreement would be translated faithfully into workable amendments.
While this agreement did not represent the best possible interpretation of the Constitutional Court's ruling, or a complete catalogue of all the required amendments, it offered an acceptable framework based on compromise - until now a dirty word in Bosnian politics. Unfortunately, the honeymoon has so far proved less happy than the wedding. The RS party leaders who had signed the agreement returned to Banja Luka to preside over the passage of a set of amendments by the National Assembly (RSNA) that violated the agreement in several places, added caveats and 'minor' changes in others, and introduced new amendments either contrary to the spirit of the Court's decision or - in some instances - to the DPA itself.
Even more brazen than the amendments themselves was the manner in which the speaker of the RSNA forced them through: over the objections of Bosniak and Croat members whose constituent" status they were meant to safeguard, and in the face of ineffectual hand-wringing on the part of OHR representatives.
Acceptance of the RSNA amendments would mean abandoning this opportunity to remodel the entities and to bring Bosnia closer to effective statehood. It would confer a bogus stamp of multinational legitimacy upon the RS without actually ensuring that the Constitutional Court's demand for equal rights throughout the country was realised.
Moreover, it would destabilise the position of the non-nationalist Alliance for Change coalition in the Federation, exposing it to accusations of treachery from Bosniak and Croat opposition parties for having signed up to a failed pact. By compromising, the Alliance parties hoped to make a start on ensuring national equality in the entities while showing that Bosnia was ready to manage its own affairs. If the international community allows these parties to be shown up as having miscalculated on both counts, it will help to return their nationalist opponents to power.
This report recounts the origins of the "constituent peoples" case and the scope of the Court's decision. It then describes the unprecedented debate on fundamental aspects of the DPA that has occurred in both entities since December 2001. It analyses the Sarajevo Agreement, the amendments enacted by the RSNA and the draft amendments awaiting debate in the Federation parliament in terms of the guarantees needed to ensure equal rights for Bosnia's "constituent peoples" and "others". Finally, it analyses changes not specifically regulated by the Sarajevo Agreement, but mandated by the decision of the Constitutional Court.
ICG believes that "symmetry in substance" requires both entities to have legislative bodies empowered not only to object to laws that violate "vital interests", but also to participate in their revision. This means endowing the RS with a second chamber, even if its competence need not extend beyond legislation affecting such "vital interests". It will also be essential to base representation of the "constituent peoples" in the RS government on no lesser standard than that agreed in Sarajevo. To accept anything less would legitimise 'ethnic cleansing'. Nor would it be just to exclude Bosnia's "others" from government or the bodies mandated to safeguard "vital interests". Implementation of the "constituent peoples" decision in the entities' courts, law enforcement agencies and local governments is no less important than securing equitable representation for all nations in their cabinets and parliaments.
Neither the High Representative nor the Peace Implementation Council (PIC) to which he is accountable should allow themselves to be deterred by Serb and Croat extremists into accepting half-baked or unjust sets of amendments. Although the Federation looks set to adopt a set of amendments fully in line with both the Court's decision and the Sarajevo Agreement, pressure or imposition could prove necessary in that entity - as it is now required in the RS. In order to overcome resistance, however, any imposition will need to be accompanied by mobilisation of the full arsenal of international weapons and inducements. Otherwise, constitutional amendments imposed upon dissenting parties will not stick, and Bosnia will remain a dysfunctional and resentful Western dependency.
The constitutional reforms now under discussion must provide equal protection for "constituent peoples" and citizens throughout the country. If the entities fail to provide such a solution, the High Representative should impose it.
(a) In Republika Srpska (RS), this will mean imposing changes to the amendments passed on 4 April 2002, bringing some into line with the Sarajevo Agreement and altering others that diverge from the original ruling of the Constitutional Court.
(b) Imposition may be required in the Federation as well, if its parliament fails to pass adequate amendments.
INTERNATIONAL IMPOSITION AND IMPLEMENTATION
The Peace Implementation Council (PIC) Steering Board - including Britain, France, the U.S., Russia, Germany, Canada, Spain, Italy, the European Union (EU) presidency, and the European Commission (EC) - should support the High Representative fully in imposing and implementing an appropriate solution.
International donors should be prepared to impose economic sanctions on any party that refuses or fails to implement aspects of the Constitutional Court's decision. This would include the withdrawal of 'soft' loans and budget support grants by the World Bank and other international financial institutions.
SFOR's troop-contributing countries should buttress security for returnees, particularly in hard-line areas of eastern RS and of Croat-controlled western Herzegovina, with ostentatious patrols if necessary.
The international community should adopt a 'zero-tolerance' stance towards violence against 'minority' returnees, holding the entity authorities directly responsible for infractions.
A just, appropriate and workable package of constitutional amendments on fair representation would include the following elements:
(a) Fair representation of the constituent peoples and "others" in the governments of both entities would be assured under the terms of the Sarajevo Agreement. RS Amendment LXXXIV contradicts the agreement's transitional formula for government before the implementation of Annex 7, and the High Representative needs to correct this if the RSNA will not. He should also ensure that the Federation passes an amendment on government in accordance with the agreement.
(b) The RS definition of the implementation of Annex 7, also contained in Amendment LXXXIV, reduces the substantial obligations which the authorities have under the DPA to support return to the mere issuance of a few thousand administrative decisions. It sets a dangerous precedent and should be annulled by the High Representative if the RSNA fails to reconsider.
(c) In both entities, the international community should ensure that either the House/Council of Peoples or the two vice-presidents participate in the election of government members.
(d) The requirement that no one constituent people hold more than two of six top entity positions (premier, speaker/president of the National Assembly/House of Representatives, chair of the House/Council of Peoples, president of the constitutional court, president of the supreme court, and entity public prosecutor) is not an ideal solution, but should be upheld in both entities as an element of the political compromise reached in the Sarajevo Agreement. This need not preclude the entities from adding a provision that the president and premier cannot come from the same people.
(e) The entity president and vice-presidents, coming from the three separate peoples, should rotate during the course of their mandate in both entities.
(f) The number of deputies to the Federation House of Representatives and House of Peoples should be reduced, as provided in the Federation government's proposal and the Sarajevo Agreement, as a first step towards streamlining Bosnia's governing structures.
(g) The "others" must be adequately represented in the RS Council of Peoples and the Federation House of Peoples, as the Sarajevo Agreement provides.
(h) The Sarajevo Agreement requirement that regional (cantonal and district) and municipal courts should have national representation based on the 1991 census is a good solution and should be upheld. This will mean changing RS Amendment LXXXV, paragraph 3, which violates this principle.
(i) For the entity constitutional courts, the Sarajevo Agreement's stipulation that at least two judges come from each constituent people (and one from the category of "others") is acceptable. The RS and Federation constitutions should include amendments making this requirement explicit.
(j) The benches of the entity supreme courts, about which the Sarajevo Agreement is mute, should be constituted on the basis of parity, with a lesser number of places for "others". The constitutions should make this explicit.
(k) Constituent peoples and "others" must be adequately represented in the other public institutions of the entities, including the administration of the entity ministries, the cantons and the municipalities. This should be according to the 1991 census until Annex 7 is implemented. Strict benchmarks and timelines should be set to ensure that the authorities do not drag their feet on implementing this provision.
Appropriate amendments on "vital interests" would include the following elements:
(a) "Vital interests" must be defined in the same way in both entities and, ultimately, at state level. The set of interests contained in the Sarajevo Agreement is adequate, but should also include matters related to refugee return and the calling of a referendum.
(b) As a parliamentary mechanism for protecting "vital interests", the Federation House of Peoples will have to be retained and Serbs accorded parity of representation with Bosniaks and Croats.
(c) The Council of Peoples defined in the Sarajevo Agreement is an acceptable body for the protection of vital interests in the RS.
(d) RS Amendment LXXXII alters the vital interest procedure for halting and amending legislation, regulations and general acts specified in the Sarajevo Agreement. Either the RSNA or the High Representative must rectify this.
OTHER ENTITY REFORMS
Both the House and Council of Peoples should have the right to consider whether legislation is of a generally discriminatory character.
They should also have the right, for a period of two to three years, to review and suggest revision or nullification of existing legislation, regulations, acts and decisions in force at the entity, cantonal or municipal levels.
The political structures of the cantons and municipalities of the Federation and of the municipalities of the RS must reflect the reforms at entity level. The cantons, in particular, will have to amend their constitutions.
Integration of the entity public sectors and police forces - within entity ministries and, most importantly, in the cantons and municipalities - should begin forthwith. This means setting targets (based on the 1991 census) and requiring that representation should conform to election results within two years. The benchmarks for minority recruitment of police in the RS and Federation should be harmonised.
RS Amendment LXXXV, paragraph 2, negates this formula based on the 1991 census, to which the RS parties agreed in Sarajevo Agreement. It must be reconsidered by the RSNA or changed by the High Representative.
Either the RSNA or the High Representative must remove the designation of "Bosniak" as one of the official languages of the RS (Amendment LXXI, paragraph 1) and replace it with the term "Bosnian", as authorised by the DPA.
RS Amendment LXVII, paragraph 1, should be reviewed for consistency with the DPA. It asserts the "independence" of the RS constitutional and judicial order, in seeming violation of the supremacy of the BiH Constitutional Court.
The second paragraph of Amendment LXVII, referring to all authority of the RS belonging to the people and being expressed through a referendum, should either be altered or the calling of referenda should be included among vital national interests.
Sarajevo/Brussels, 16 April 2002