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In April, the latest attempt by the EU and US tohelp overcome the political crisis in Bosnia andHerzegovina failed, with key Bosnian politicalplayers rejecting US Deputy Secretary of StateJames Steinbergs and Spanish Foreign MinisterMiguel ngel Moratinos efforts, during a visitto Sarajevo, to convince them to sign up toconstitutional reforms and a reform agenda afterthis years general election.

Over the past year, Bosnia and Herzegovina (henceforthreferred to simply as Bosnia) has slipped back intointernational headlines for all the wrong reasons. Talk

of a new war and its potential disintegration hascaptured global attention, prompting a renewed focuson the country by the US and the EU.

This interest is justified, given both the political crisisin Bosnia and the EU's unclear and wavering strategytowards the country.

New EU foreign policy chief Catherine Ashtonsdecision to visit Bosnia during her first trip abroadafter the US, is encouraging, as are indications thatboth the EUs foreign policy and enlargementstrategy towards Bosnia and the Western Balkans

are being reevaluated. This renewed interest in thecountry, however, runs the risk of leading toengagement for the wrong reasons, compoundingthe EUs inability to effectively deal with thechallenges facing Bosnia.

Should we stay or should we go?

Bosnia is no closer to the brink of collapse than it hasbeen many times since the end of the war in 1995; arenewed conflict is not on the horizon.

If anything, the hasty and ill-prepared EU-USinitiative at the Butmir NATO base next to Sarajevoairport in autumn 2009 contributed to creating thesense of crisis rather than alleviating it.

International mediators had hoped to kick-startconstitutional changes and secure a deal on theremaining criteria necessary for the Office of theHigh Representative in Bosnia and Herzegovinato be closed. While driven by desirable goals, theprocess was mishandled by the US and the EU.

The initiative was designed to put pressure on the

political parties to agree to major concessions, butmost walked away from the talks and rejected theinternationally proposed reforms when they realisedthat neither sticks nor carrots were on the table,just a show of engagement.

Following the aborted talks and a few furtherrounds of technical discussions, the so-calledButmir Process is dead. While the proposedreforms remain on the table, elections in October2010 and the EUs all-too-brief engagement haveall but ended Butmir. It joins the ranks ofprevious failed reform efforts, from the April

package (named after the month in which itwas rejected by the Bosnian parliament in 2006)to the Prud agreement (a vague platform forconstitutional reforms drafted in a small Bosnianvillage in 2008).

The latest efforts failed for three reasons: theEU and US were ill-prepared, suggestingquick fix solutions to the parties. Second,international mediators had little to offer inexchange for reform, especially to those parties

Constitutional reform in Bosnia and Herzegovina:preparing for EU accession

The King Baudouin Foundation and Compagnia di San Paolo are strategic partners of the European Policy Centre

BACKGROUND

Florian Bieber

POLICY BRIEF

April 2010


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Matters have been complicated by the long-expecteddecision of the European Court of Human Rights (ECHR)

in December 2009 which found the BosnianConstitution in breach of the European Convention onHuman Rights, because the presidency and the upperchamber of parliament the House of People areonly open to Serbs from the Republika Srpska andBosniaks and Croats from the Federation, thus excludingminorities and members of the dominant nation fromthe wrong entity.

This decision gave the calls for constitutional changea new sense of urgency. However, while there isbroad agreement among Bosnias political actors thatthe Constitution needs to be amended, there is more

than one way to do this, and all the alternatives arecontroversial because they go to the heart of thebalance of power between the state and the entitiesand between the different ethnic groups.

The most important change would affect the electionof the presidency. A minimalist approach, promotedby the Republika Srpska (RS), would be to remove theethnic labels but keep the current electoral system.This would formally address the Courts ruling, butwould not end the discrimination. Most proposals formore substantial reforms have focused on reducingthe presidencys power and introducing indirectelections. The key difficulty here would be in

ensuring that those groups previously excluded canbe represented, while avoiding the exclusion or over-representation of one of the three dominant groups.

If the presidency members are elected by the entitieswithout ethnic pre-fixes, Croats are likely to beunrepresented, and if a fourth member is added to thecurrent three to represent others (i.e. minorities), thereis a danger of this position being abused by nationalistparties running token minority representatives for theseat. Replacing the presidency with a single president(with two or more vice-presidents) would be the bestsolution, but is one to which Croat and Serb partieswill be reluctant to agree.

Institutions rather than constitutions

Although changes are needed to some aspects ofthe state structure to facilitate EU accession,constitutional reform has become a fetish.

Decisions can be taken through the currentConstitution, as long as there is political will toproceed with EU integration, and even a reformedconstitutional structure will need to include vetoesand quorums which would allow one of theconstituent people or entities to block manydecisions. Otherwise, neither the Croat nor Serbparties will agree to such changes.

By focusing on constitutional reform, cause andsymptom are confused: the cumbersome politicalstructure is not to blame for the delays in EU integrationand the slow pace of reforms; the political disputesbetween the different political parties are. Constitutionalreform can at best reduce the number of veto points,opening the door to the creation of political spaceswhich are not completely dominated by ethnic politics.But this would take several electoral cycles to achieveafter the Constitution has been amended.

So what kind of constitutional amendments arepossible and what can they achieve? As any changesrequire the consent of a parliamentary majority of

all three constituent peoples Bosniaks, Croats andSerbs reform without a broad consensus is impossible.Nor is it desirable: in divided societies from SouthTyrol to Northern Ireland or Belgium, constitutions areintentionally difficult to change to avoid one groupimposing its will on others. Narrow coalitions also tendto make it easier for 'spoilers' to wreak havoc bysabotaging the entire political system.

Amending the Constitution must be a consensualand inclusive process, no matter how odioussome of the parties involved might be. This, bydefinition, rules out any maximalist changes, suchas the proposal for a civic constitution of a more

STATE OF PLAY

which would have lost out as a result. Third, bycreating a sense of emergency in Butmirs armybarracks, the mediators suggested thatextra-institutional and quasi-coercive meansmight be used to change Bosnias political

structure. The EU and the US lacked themeans and determination to back up such ahigh-risk strategy.

While it would be tempting to blame the failureof Butmir on intransigent nationalist leaders, theinternational community must shoulder a large

share of the responsibility. The EU, in particular, hastaken a contradictory line.

The criteria and conditions for further progressin the Stabilisation and Association Process have

changed and remain unclear. The EU has beenparticularly ambivalent about constitutionalreform, supporting (although not whole-heartedly)the first US-led efforts that failed in April 2006 andthen subsequently stating that constitutional changesare not a requirement, but are necessary. Even if thismight be right, it has sown damaging confusion.


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Constitutional reform before the general election ishighly unlikely, as any changes have to be approvedbefore elections are called. The election law requires thevote to be held on the first Saturday in October and itmust be called 170 days (or 51/2 months) ahead of time.

This is not inherently problematic. The ECHR rulingdoes not require constitutional changes beforemid-2011. Not only are the elections a brake onreform, as little legislative progress can be expectedthis year, but ethno-nationalist rhetoric also flourishesduring electoral campaigns not a good climate inwhich to discuss controversial constitutional changes.

Furthermore, the formation of governments in Bosniais painfully slow due to the need to form coalitionsbetween parties with diametrically opposed platforms.It is therefore unlikely a new government will be inplace before early 2011, at the state and entity level.

Also, while elections can potentially change thepolitical dynamics in a country, the internationalcommunity has consistently overestimated theirpower to change the game. Ever since the firstelections after the war in 1996, there have beenhopes that more moderate and cooperative parties

would come to power, but more often than not, the

opposite has been true or, as was the case in the2006 elections, the moderates turned out to bemore uncompromising than the establishednationalist parties.

Reliable opinion polls are notoriously hard to comeby in Bosnia given the divided nature of partypolitics, but radical change seems improbable.

In the RS, Milorad Dodik and his Alliance ofIndependent Social Democrats are unlikely to retainthe overwhelming dominance they have enjoyedsince 2006. However, no other party is likely toovertake Mr Dodiks party, which might thus continueto dominate RS politics in the coming four yearsunless a broad coalition of opposition parties canchallenge it. Political opponents will gain not fromchallenging Mr Dodik on his nationalist rhetoricand uncompromising defence of the Serb entity,but rather from his authoritarian streak and hisalleged financial wrongdoings.

In the Federation, the picture is more complex andless predicable, not least due to the new Union for aBetter Future of Fahrudin Radonci, owner of theinfluential media group Avaz. A Bosniak Berlusconi,

he could become a king-maker in the next Federation

PROSPECTS

centralised Bosnia floated by the opposition SocialDemocratic Party.

Realistic constitutional change can thus accomplishone of two goals: a) enshrine the current status quoin

the Constitution and incorporate the ECHR ruling;or b) make a few additional changes drawing on thefailed 2006 effort.

The former would be more likely to win the support ofSerb parties and foster greater commitment to theinstitutional system. It might also help to overcomesome of the current paralysis borne out of continuouschallenges to the countrys structure, primarily fromBosniak parties seeking to weaken the RepublikaSrpska and parties from the RS seeking to claw backcompetences for the entity at a price. The second optionwould facilitate the administration of the country in

some respects, but might be harder to agree on, asthe RS has few incentives to move much beyond itsinsistence on maintaining the status quo.

Most important, however, is the fact that beyondaddressing the breach of European human rightsstandards no constitutionalchange is, strictly speaking,necessary for Bosnia to move towards further EUintegration, and should not become a condition fordoing so. Bosnia will need clear institutional

arrangements which will allow it to determine a singleposition in key policy areas and implement EUlegislation. These can take many forms, fromstate-level ministries and agencies to inter-entitycoordination bodies.

There can be no doubt that although political elitespay lip service to EU accession, no major politicalactor is willing to agree to cede powers for the sakeof EU accession alone. Furthermore, decisions onwhich level of government negotiates with the EU,and where standards are set and implemented, arenot technical but profoundly political. Thus, EUaccession cannot de-politicise Bosnian argumentsover where power lies. At best, it can create incentivesfor institutional reform and help to defuse some ofthese controversies in the long term.

The EUs record so far has not been good: the failedpolice reform demonstrates that when the locus ofpower becomes more important than the substanceof reform and when the requirements lack credibility,the Union is bound to fail. Consequently, effectiveEU engagement needs to focus not on one particularinstitutional set-up, but rather on clearly identifyingwhat different institutional set-ups can (and cannot)engage with the EU during the accession process andonce Bosnia becomes a Member State.


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European Policy Centre I Rsidence Palace, 155 rue de la Loi, 1040 Brussels, BelgiumTel: +32 (0)2 231 03 40 I Fax: +32 (0)2 231 07 04 I Email: [email protected] I Website: www.epc.eu

With the support of the European Union:Support for organisations active at European level

in the field of active European citizenship.

and even state government. Recent attacks byMr Radonci on the editor-in-chief of the Federationnews programme arguing that there is no placefor non-Muslims as editors in public broadcasting suggests that he is willing to use Bosniak nationalism

just as Mr Dodik has used Serb nationalism: toconsolidate his power.

At the same time, the moderate Social-Democratsare likely to make a political comeback, splittingthe Bosniak vote. After October, a weakerMr Dodik might govern Bosnia together with newpartners from the Federation. While this outcomemight end the vicious cycle of confrontationbetween Mr Silaji and Mr Dodik, it will nottransform the underlying political conflicts thathave shaped Bosnian politics for more thana decade.

Amending the Constitution will be marginally easierafter October, but is likely to be pushed back tomake way for other, more pressing reforms. This isboth good and bad news. On the upside, focusingon other policy issues could help to avoid gettingbogged down in the most controversial aspect ofBosnian politics. The downside is that even theconstitutional changes based on the ECHR rulingmight re-appear only as the next electoral cyclelooms when it is too late, once more, for aconstitutional debate.

How to engage with Bosnia?

The policy consequences for the EU are clear:immediately after a new government is formed,it will need to take a soft but strategic approachtowards Bosnia.

This strategy needs to move away from theassumption that Bosnia is a potential EU MemberState just like any other country, but also avoidrash reactions which play into the hands of thosewho either hope or fear that outsiders will seek toimpose solutions to Bosnia's problems. It shouldfocus on outlining clear options for the organisationof Bosnia's institutions to prepare for eventualEU membership. These options should draw ondifferent models among current EU MemberStates, especially those organised as federal states(especially Belgium and Germany), rather thanon proposing any particular organisational structurefor Bosnia itself.

A complimentary EU effort to encourageconstitutional reform can help Bosnia overcomesome of the egregious flaws in its Constitution. Thisengagement should be built on the followingnegotiating principles:

a) constitutional amendments should only beintroduced through the formal institutionalprocess, not pushed through ad hocmeetings,to reduce the risk of spoiling tactics if only partyleaders are included;

b) the goal of constitutional reforms should notbe state-building by stealth, but addressing theConstitution's shortcomings in terms of humanrights and facilitating EU accession, to reestablishthe Union's credibility as a mediator in thereform process;

c) the EU should steer the process by providingadvice and guidance, offering a clear menu ofoptions to prepare Bosnia's institutional structurenot only for accession negotiations but also formembership; and

d) reforms should be built on the premise thatBosnia is a fully-functional decentralised country,which includes the Serb Republic as one of itsfederal units and a state government which canrepresent Bosnia in the EU.

While it would be easy to draw up a long wish

list of the desirable constitutional changes, themain goal must be an agreement which movesthe existential debates on how, why and whetherBosnia should exist into the background.

With such a soft, but strategic approach, theEU can help to overcome the political crisis whichhas plagued Bosnia in recent years. However, itwill not produce immediate results and Bosniawill continue to require the Union's patience andlong-term engagement.

Florian Bieber is a Lecturer at the University ofKent and Visiting Fellow at the London Schoolof Economics, UK. He is the author of Post-WarBosnia (Palgrave, 2006) and has worked extensivelyon Bosnia as a researcher and policy adviser.

The issues raised in this paper are discussed inthe EPC's Balkans Forum.

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