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Kamil Wons  20 września 2019

Bosnia and Herzegovina – a liberal utopia

Kamil Wons  20 września 2019
przeczytanie zajmie 8 min

Bosnia and Herzegovina can serve as a case study of thinking along the lines of „the end of history” and of how noble ideas become a caricature of themselves when detached from social realities. This war-torn land is a sort of proving ground where we may learn the limits of the effectiveness of liberalism. The experiment seems to be coming to an end before our eyes, and this may cause unpredictable consequences for the entire region.

Terminology note: the author uses the term „Bosnian” to describe people, things and phenomena associated with Bosnia as a land/territory/state. Whereas the term „Bosniak” shall refer to the nation formed mainly based on Bosnian Muslims.

Dr Frankenstein’s State

To begin the discussion, we need to outline the political framework of modern Bosnia and Herzegovina, as it defies what we would call a „normal” democratic state.

Bosnia’s structure confirms the truth of the saying that makeshift work is the most durable kind. The current shape of the state is the result of the Dayton Agreement signed in December 1995. At that time, the Bosnia and Herzegovina constitution was imposed, which constitutes Annex Four to the peace agreement and was not adopted in any referendum or parliamentary vote.

As a result of the treaty, Bosnia has become a peculiar dominion of the internationalist community – there are international stabilization forces stationed on its territory to guarantee the implementation of peace provisions. Apart from the military component, civilian structures were also set up to oversee the implementation of the Dayton Agreement. Bosnia and Herzegovina is a federal state, consisting of two so-called entities, i.e. the Federation of Bosnia and Herzegovina (broken down into 10 autonomous cantons, FB&H) and the Republika Srpska (not to be confused with the Republic of Serbia, RS) and the Brczko District, which is a condominium of both parts, but with its own authorities. The state is highly decentralized (there is a presumption of competence for entities and further for cantons). Furthermore, both entities differ significantly from each other. While FBiH is decentralized and continues the logic according to which the whole state is built, RS is a centralized organism and more reminiscent of a nation-state than an element of a wider federation.

The entities are the heirs of states functioning during the war in Bosnia. These include Republika Srpska in Bosnia and Herzegovina (the quasi-state of Bosnian Serbs not recognizing Bosnia’s independence and wanting to stay in Yugoslavia) and the Federation of Bosnia and Herzegovina (the Muslim-Croatian federation, which was established to end the Croatian-Bosniak struggles in 1994 under pressure from the US). Entities have their basic laws as well as legislative and executive bodies. To sum up, there are 13 constitutions in force in Bosnia and Herzegovina, 13 different levels of government at work, and 14 parliamentary and quasi-parliamentary assemblies. And all that in a country with 3.5 million inhabitants.

The grand experiment

The General Framework Agreement for Peace in Bosnia and Herzegovina – this is the official name of the Dayton Agreement – is a rather peculiar document. Both its shape and manner of creation were among the symptoms of the US victory in the Cold War, as well as a sign of US domination in the international arena. Despite the participation of European partners in diplomatic and military operations to end the war in Bosnia, the Americans were the ones to dictate the terms. The agreement was negotiated at the US Wright-Patterson air force base in Dayton. The following presidents took part in the negotiations: Serbia – Slobodan Milošević, Croatia – Franjo Tuđman, Bosnia – Alija Izetbegović and American negotiators: Richard Holbrooke and general Wesley Clark. The signing of the document in Paris was only to sweeten the Europeans’ their lack of agency.

The key influence on the agreement’s final shape was American domination during negotiations, as well as the desire to end military operations as soon as possible. This consensus is very temporary and sometimes even truncated, and yet strongly ideological at the same time.

This document aims at creating an ex nihilo model of an inclusive democratic society. It shows traces of Arend Lijphart’s concept of social democracy and inspiration from the Swiss model. The magnitude of the crimes committed during the war also put pressure on respecting and protecting human rights. The Constitution and other annexes are full of catalogues of rights and lists of international conventions that are to be binding in Bosnia. The consocial nature of the state is implemented through the concept of equal representation and decision-making of the so-called „constituent peoples” (Bosniaks, Croats and Serbs). If we take any authority body from Bosnia, we can be sure that its chairman has two deputies, and each of these three (or four, if an additional deputy was foreseen for the „others” category) must be from a different constitutional nation.

This is how e.g. the Presidency of Bosnia and Herzegovina functions, which is a three-member head of state in which we are dealing with the rotating presidency of representatives of each of the constituent peoples. Moreover, the central parliament has a complicated majority system in place to prevent other nations from „voting”, for example, within one of them, apart from obtaining the majority of members present, the decision must be approved by at least 1/3 of representatives of each entity present in the room. Finally, there is the procedure for invoking the so-called „vital interests”, where representatives of one of the nations may block a decision they consider a threat to their interests. Special bodies are established at the central and entity levels to represent the interests of constituent peoples. This task is fulfilled by the House of Peoples in the central parliament and the FB&H parliament, as well as the Council of Peoples which is the controlling body for the RS parliament.

It quickly turned out that nations that had only recently been carrying out ethnic cleansing on one another were unable to cooperate in one country. Institutional paralysis threatened to halt the peace process. This, of course, failed to result in revised assumptions regarding Bosnia’s future. The international community has concluded that the people of Bosnia and Herzegovina will naturally mature to democracy, and the only thing that needs to be done is to establish democratic institutions and remove politicians and officials who may stand in the way of achieving these goals.

A tool for this has become the Office of the High Representative for Bosnia and Herzegovina (OHR). This represents the Peace Implementation Council in Bosnia and Herzegovina – an international organization established to implement the Dayton peace agreements. At first, the Office was to be merely a kind of ambassador supporting local elites. Due to the risk of a breakdown in the peace process, the Peace Implementation Council has significantly expanded the powers of the High Representative at the Bonn meeting in 1997. Ironically, the document was entitled: „Bosnia and Herzegovina 1998: Self-Sustaining Structures”. The so-called „Bonn powers” are an extremely extended interpretation of the OHR’s mandate, giving him dictatorial power in Bosnia and Herzegovina. He may amend the constitutions of entities, issue laws and ordinances, dissolve parliaments and remove any officials at his discretion (without the right to appeal and irrespective of one’s democratic mandate).

Subsequent High Representatives were using these powers eagerly. It is them that Bosnia owes e.g. its national symbols, reforms in the police, army and prosecutor’s office, as well as the judicial system, the regulation of Brczko’s status or dozens of amendments to the constitutions of entities.

High Representatives did not shy away from the dismissal of the President of the Republika Srpska in 1999 and the chairman of the Presidium of Bosnia and Herzegovina in 2001, the simultaneous removal of sixty high officials of the Republika Srpska from office in 2004 or… the annulment of the judgment of the constitutional court in 2007, which declared OHR’s personal activities incompatible with European Charter on Human Rights.

Inherited dominion

Years went by, but despite imposing further reforms, the prospect of fully implementing the GFAP was still a remote one. Internal contradictions in the Dayton system started to become noticeable.  The situation where the only functioning and reforming body is the dictatorial power of the international community ambassador stood in clear contradiction to the postulated vision of an independent and democratic Bosnia. Furthermore, there is a constant tension between the idea of a coherent and democratic Bosnian society and the reality of the ethnic conflict that was resolved on an ad hoc basis through concessions for nationalists.  This tension became apparent after Bosnia joined the Council of Europe when voices were raised saying that the country’s political system was in breach of the European Charter of Human Rights, not only in terms of OHR’s power but also systemic issues, the so-called „constituent peoples”. This was pointed out e.g. by the judgment of the European Court of Human Rights in the case: „Sejdić and Finci v. Bosnia and Herzegovina”. Dervo Sejdić (a Bosnian Rom) and Jakob Finci (a Bosnian Jew) accused Bosnia and Herzegovina of breaking Article 14 of the ECHR, i.e. a ban on discrimination, including due to one’s nationality. This involved restricting the passive electoral right to the Presidium of Bosnia and Herzegovina and the Houses of Peoples (according to the constitution, only Bosniaks, Croats and Serbs can run). The ECHR granted the injured party’s request and ordered a constitutional amendment. The judgment was published in 2009.

Therefore, a process was started in which the European Union is to take more and more responsibility for the implementation of peace agreements. In 2002, the office of the European Union Special Representative in Bosnia and Herzegovina (EUSR) was appointed, which was in a sort of personal union with OHR until 2011. In December 2004, the EUFOR Althea military mission began, which took over responsibilities from NATO’s retreating stabilization forces (SFOR). As a result of the failure of subsequent proposed expiry dates of the High Representative’s mandate, the initial optimism regarding the quick transition from the „Dayton to Brussels” was changed to the narrative of the transformation of OHR into the EUSR.

In 2008, the „5+2 agenda” was announced, articulating, as the name implies, five hard and two soft premises for closing the OHR mission. Currently, the High Representative is in a state of suspension – he has not taken any binding decision since 2014, and those that were adopted between 2009 and 2014 primarily focused on withdrawing the ban on performing public functions (the expiry of the OHR’s mandate would, in fact, lead to a lifetime ban). In its powers and mandate, the EUSR broadly goes back to the original vision of OHR, his activities intended to focus on indirect influence, counselling and mediation. The transformation of the Office of the High Representative was to be supported by Baroness Catherine Ashton’s plan, focusing on economic and political reforms bringing Bosnia and Herzegovina closer to EU membership.

The issue of constitutional amendment turned out to be crucial, as without it there would be no systemic transformation. The problem is that abandoning the OHR’s dictatorial tools means that the whole process will depend on the agreement between the peoples of Bosnia and Herzegovina. Further attempts to change the constitution, undertaken since 2005, have failed. This is due to fundamental differences in the perception of Bosnia and its political system by individual groups.

Simply put, it looks something like this: The majority of Bosniaks identify with the state as a whole, and their national identity is based on Bosnianism, built around Islam and added later (the reference points for them are: the medieval Kingdom of Bosnia and the Ottoman Bosnia Eyalet). For these reasons, the Bosniaks strive to centralize the state and create a pan-Bosnian identity based on Islam. To them, the Dayton Agreement was merely a tactical ceasefire, a step towards their goal. They are most determined in their efforts to change the system because their vision largely coincides with the vision of the international community.

The idea of Bosnian Serbs is the precise opposite. They treat themselves as part of the Serbian people (after the end of the Ottoman rule, the Bosnian Orthodox population came under the influence of the Serbian national movement), and the failure of the war plan to break away from independent Bosnia causes a jealous defence of their autonomous republic. To them, the Dayton Agreement is a guarantor of rights and the basis of the existence of the Republika Srpska. Therefore, they interpret all movements seeking to improve the system as an act of centralization, a sort of attack against which they must defend, as well as an attempt to implement the vision of a unified Bosnia. From their point of view, revisions of the Dayton Agreement are tantamount to denouncing it and opening discussions regarding RS’s status.

Much like Serbs, the Bosnian Croats feel part of the Croatian nation, but they recognize Bosnia and Herzegovina as their homeland. As the least numerous group, they manoeuvre between the other two. Along with the intensification of centralization pressures, they increasingly articulate the sense of discrimination due to the lack of their entity, which is why they cooperate with Serbs to torpedo Bosniak activities. The shape of the electoral law means that Bosniak votes are used to elect moderate conciliators pursuing the interest of the Muslim majority as Croatian representatives.

The balance of the new policy

Less than twenty-four years after the signing of the peace agreement, Bosnia is still an unstable country and depends on international assistance. Despite the immense amount of money transferred to it (in the period 1996-2010 alone, it exceeded what any European country got under the Marshall Plan in per capita values), the state of the economy is far from perfect. Unemployment oscillates around 20-30%, whereas among young people it exceeds 50%. The primary reasons for this situation are the inefficient political system and massive corruption. All this causes a significant overgrowth of administration at every level. The share of state-owned enterprises in the economy is also colossal, which results in most jobs being generated by the state, which, along with huge unemployment, contributes to corruption and political clientelism.

The OHR’s self-restriction resulted in halting reforms. Even the perspective of EU membership has ceased to motivate political elites. Already in 2000, a road map was prepared for Bosnia to reach the Stabilization and Development Process, while in 2016 BiH submitted an official application for EU membership. However, this is all for the sake of appearances; the degree of adaptation to EU requirements is similar to the level of Albania… from ten years ago. Last year’s European Commission report states that in all areas progress has not been made at all or is far too slow. The major issues include corruption and incomplete transition to a market economy. In the key area of administrative reform, no steps have been taken since 2016, i.e. since presenting the reform guidelines. Paradoxically, the Republica Srpska, sceptical of the West, is making the most progress. It turns out to be the only part of the Bosnia and Herzegovina political system to carry out its tasks. Even the report authors deplore that the Serbs created their progress verification system that is incompatible with the methods used in Bosnia. In this year’s report 15 out of 33 areas were classified as being at an early stage of preparation, 16 with some advancement, and 2 as moderately advanced. None of them was of a good or very good standard.

The EUSR’s activities to date are not optimistic. The example of the crisis over last year’s elections is symptomatic here. In December 2016, the Constitutional Court approved the Bosnian Croats’ request and repealed part of the electoral law, giving Parliament half a year to pass the amendment. Despite numerous meetings of the EUSR with the Bosnian elite, this has not been done to this day. Therefore, on October 8, 2018, elections were held without a fully legal basis. Failure to elect the FB&H House of Peoples threatened to paralyze one of the entities and the central authorities (RS would become the only part of Bosnia to function smoothly). Ultimately, the issue was resolved by bending the applicable law, regulating the law… at the decision level of the Central Election Commision of Bosnia and Herzegovina. Despite this, it was still not possible for a central government to emerge. Moreover, the Croats strongly contest the election of their candidate for the presidency of Bosnia and Herzegovina (he was de facto elected by Bosniak votes).

It is symbolic that on January 25, Lars-Gunnar Wigemark (the current EUSR) has met with Dragan Čovic, the leader of Bosnian Croats who lost in the presidential election, to persuade him to recognize the election result. On the next day, the HNS (Croatian National Assembly, an umbrella organization of all nationalist parties and Croatian movements in BiH, headed by Čović) adopted the declaration accusing the Bosniaks of breaking the Dayton spirit, unitarian attitudes and violation of the rights of Croats in Bosnia. The most concerns were raised by a fragment of the declaration, where the HNS rejects part of the judgment of the International Criminal Tribunal for the former Yugoslavia. This judgment recognizes the authorities of Herceg-Bosnia and the Croatian Defense Forces (that is, the quasi-state of the Bosnian Croats during the war and its armed forces) as criminal organizations. The document thus undermines the official vision of the war (promoted by the Bosniaks and the international community), under which the conflict in Bosnia was not a civil war, but rather aggression against an independent Bosnian state.

Feeling support from the West, the Bosniak majority added fuel to the fire. In January this year, they submitted a request to the Constitutional Court, asking to change the name of the Republika Srpska. The Bosniaks’ actions were motivated by the interpretation of the Dayton system developed by the OHR and the Constitutional Court of Bosna and Herzegovina, under which all of Bosnia was equally the state of all constituent peoples, so there could be no question that any part of it was exclusively Serbian.

Of course, everyone is aware that such a decision would undermine the sense of RS’s separate existence. We didn’t have to wait long for the answer. The Bosnian Serb leader, Milorad Dodik, stated that RS has prepared legal acts that allow restoring border checks with FBiH at any time, and besides it has all the internationally recognized features of a state – population, territory and authority.

The time for good solutions is over

After some time, the matter of changing the name abated, since heating up the atmosphere served short-term political goals and improved the position in negotiations when forming the government. The above situation showed all the structural problems of the state. Contrary to the official narrative, the major beneficiaries of the status quo are nationalist parties. They are the ones gaining support by heating antagonisms and playing the inefficient functioning of the state – spreading corruption and criminal ties. The Bosnia and Herzegovina residents, held hostage in their inefficient state, are the main losers here. In the current situation, you can either put out fires temporarily, knowing that problems will only accumulate and return, or make decisive and costly cuts. Unfortunately, neither side – Bosnian and the so-called „external” one – decides to introduce drastic yet necessary changes. European elites cannot afford to admit that the policy they had been pursuing for over two decades is faulty and building a supra-ethnic and democratic Bosnia turned out to be a failure. This would mean undermining the ideological foundations of the West, recognizing that liberal democracy is not the natural and final point in humanity’s development. Of course, further threats and raising the stakes is just a political show. However, it blocks the possibility of solving accumulated issues while maintaining a high degree of distrust among nations. It is not known how long Bosnia and Herzegovina’s artificial existence will be able to sustain. History teaches us that at times of crisis, it is the elites that govern the course of events at first, but the roles are quickly reversed…

The publication co-financed by the Ministry of Foreign Affairs of the Republic of Poland. This publication reflects the views of the author and is not an official stance of the Ministry of Foreign Affairs of the Republic of Poland.