The Bosnian Constitution, Marking 25 Years, Needs an American Reboot

Today marks the 25th anniversary of the signing of the U.S.-brokered Dayton Peace Accords that ended the nearly four-year Bosnian War (1992-1995), the deadliest conflict in Europe since World War II. Dayton is a curious creature. It is, arguably, the most successful peace agreement in modern history; the pact combined a complex political settlement with robust international enforcement, all of it fundamentally orchestrated by the United States. As writer George Packer observes, Dayton was perhaps Pax Americana’s highwater mark.

And yet Dayton’s centerpiece Annex IV, which serves as Bosnia and Herzegovina’s (BiH) constitution, is an unwieldly sectarian conundrum, an arrangement that created 14 different governments for a country of barely 3 million people that is scarcely the size of West Virginia. Moreover, this constitution is so riven by various discriminatory provisions – an erstwhile necessity for ensuring the commitments of the once-warring factions – that it has produced a virtual legal vacuum in BiH. A series of landmark decisions by the European Court of Human Rights and BiH’s own Constitutional Court striking down large portions of the existing power-sharing arrangements have been met by the categorical intransigence of the country’s ruling nationalist oligarchs, who have refused to implement any of these rulings.

BiH’s existing constitution is therefore legally and politically untenable, making the pageantry of the 25th anniversary of its inception quite bizarre. Because what is clear about Dayton is that it cannot – and very likely will not – see its 50th birthday. Nor was it, in truth, ever designed to last for as long as it has.

Under the determined pressure of U.S. special envoy Richard Holbrooke, the warring parties negotiated final terms at a U.S. Air Force base outside Dayton, Ohio, on Nov. 21, 1995, and formally signed the document on Dec. 14 in Paris. As the post-war dysfunction baked in by the agreement became clear and overwhelming to any prospect of decent governance in BiH, the U.S. initiated a series of attempts to revise the constitution during the 2000s. All ultimately failed, even as other reform initiatives produced remarkable breakthroughs. Among the successes were the establishment of unified armed forces and state police, neither of which were envisioned in the original Dayton agreement. Nor was the final status of the critical and contested Brcko corridor agreed in Ohio; today, Brcko is a competently administered, multiethnic special district in a country defined by ethnic segregation and dysfunction.

Bosnia’s Next Quarter Century

These are significant facts to recall as we look to BiH’s next quarter century, and the future of its “Made in America” constitution.

There are, broadly, four possible paths forward for BiH: the status quo, further internal fragmentation, dissolution, the adoption of a European-style civic-liberal constitutional regime. Of these four options, only one – the fourth — offers the possibility of a credible Euro-Atlantic path for BiH, accommodation for all the country’s peoples, and the prospect for a permanent disentanglement for the international community from the country’s day-to-day politics.

Still, it is important to explain why the three other options are unacceptable.

The status quo in BiH is clearly untenable. That is widely recognized, even by the European Union, which has failed miserably in its attempt to replace the United States as the Western Balkans’ primary international patron. The whole region of the Western Balkans has seen significant democratic, political, and security backsliding, even EU member Croatia, since the U.S. turned away from the European theatre in the mid-2000s. But that cost has been most acutely borne by BiH, the region’s geopolitical center, which is now once again the target of irredentist pretensions both by Belgrade and Zagreb, but also increasingly the site of assorted Russian destabilization campaigns.

Further internal fragmentation and segregation, which is the preference of both the Serb and Croat nationalist establishments in the country and their respective benefactors in Serbia and Croatia, is also a non-starter. This would only exacerbate rather than remedy the existing socio-economic flaws of the Dayton order: an incomprehensible and unwieldly administrative regime marked by endemic corruption and anemic economic growth. Adopting a full apartheid model would also, obviously, not address the concerns with the discriminatory facets of the existing regime; it would only deepen and expand these. This option would also be unacceptable to the country’s majority Bosniak community, and to all self-identifying Bosnians.

Dissolution is the stated preference of the country’s Serb nationalists, namely the long-ruling secessionist party the Alliance of Independent Social Democrats (SNSD) led by the ultra-nationalist Milorad Dodik in the Republika Srpska entity. But it is also an option that has increasingly won the backing of segments of the Croat nationalist Croatian Democratic Union (HDZ) party, which works closely with the SNSD. But “dissolution” is a misnomer; the term is war. No peaceful fragmentation or partition of the Bosnian state is possible, much as the same was not possible in the 1990s.

Core Identity for the Majority

For the majority of the country’s population, BiH is a core part of their identity. For Bosniaks, especially, BiH is their homeland; it is an intrinsic part of their culture and self-understanding. But the same is also true of those who identify as Bosnians, that is, not as members of any of the country’s three primary ethnic groups. This small but significant civic community was critical to BiH’s survival during the Bosnian War. Both the Bosniaks and Bosnians accepted Dayton precisely because it preserved the existing Bosnian state, albeit within differently constituted internal parameters.

Those in the international community who have tired of BiH’s complexities and pejoratively characterize it as an accidental state, or a state without a people, misunderstand the depth of attachment the majority of its population has to this land. BiH was not created at Dayton; its borders are the oldest and most consistent in the region.

And allowing Serb and Croat nationalists to imperil the sovereignty and territorial integrity of BiH will have consequences. It would eventually lead to a right-populist turn in the Bosniak community, who will respond to these threats by advocating for the transformation of BiH into the exclusive nation state of the Bosniak community. And that, in the end, may well prove to be a far more significant security challenge for the U.S. and the EU than the existing political adventurism of the SNSD and the HDZ.

The only remaining trajectory then is to initiate the transformation of BiH into a modern, secular, liberal-democratic polity, one that will enshrine the rights of the individual, while still providing accommodations and protections for communal rights. Above all, BiH must become a rationally administered state that will move beyond the bankrupt ethnicity-territory matrix at the heart of Dayton.

Are there critics and opponents of such a proposal? Of course, especially in the Belgrade and Zagreb lobbies in Brussels and Washington. But they, in turn, offer no viable alternatives, as has been shown. The reality is that a truly liberal-democratic and civic BiH is the compromise solution. It is the only model that provides for the rights and protections of all Bosnians and Herzegovinians, while also offering a credible exit strategy for the international community to finally leave BiH truly to its own – but more constructive — devices.

A Better Foundation

A recent working group at The Wilson Center, of which I was a part, produced a robust set of guiding principles that should inform any future Bosnian constitution, along with the steps that need to be taken in the interim to ensure its peaceful crafting. The Democratization Policy Council produced several years ago an even more detailed proposal for what they termed the country’s “municipalization,” There is, in short, no lack of expertise for how to draft a better foundation for BiH.

What is lacking is the international will to midwife such a settlement. Realistically, only one country has the legitimacy and capacity to ensure it: the United States. No American president has been as intimately familiar with BiH or the Western Balkans as Joe Biden, whose advocacy on behalf and engagement with BiH goes back to the darkest hours of the Bosnian War. President-elect Biden understands the job left unfinished in BiH, and he also understands the necessity of American engagement in Europe.

If the administration decides to take on the task of rebooting BiH’s constitutional regime, it will be no simple endeavor. But the potential rewards are greater still. This project offers a concrete way for the U.S. to renew ties with European allies, Germany above all. It also provides an on-ramp for the U.K. to plug into this new U.S.-EU relationship. Moreover, finally stabilizing the Western Balkans by cementing peace in the region’s most volatile polity would enable NATO to undermine Russian and Chinese attempts to foment instability on the continent, while also checking the pretensions of still smaller malign actors like Serbia.

The incoming administration will be met by a plethora of problems, none greater than the devastation of the pandemic. But Biden is an internationalist and an Atlanticist, and he understands that in the long run, American security and prosperity depend on Washington remaining an engaged global actor. There is a historic opportunity in BiH for the United States to return to the site of its greatest post-Cold War triumph and mark its own homecoming to the international community by helping deliver a liberal-democratic compact that will do right by all Bosnians and Herzegovinians. It should do so, above all, because time is of the essence.

IMAGE: A photo shows a war-damaged business building in the center of the southern Bosnian town of Mostar next to the reconstructed city gymnasium school, on Dec. 7, 2020.  Mostar is the only Bosnian city that has not held local elections in 12 years. Split into Croat and Bosniak zones by the Dayton Peace Agreement, which ended Bosnia’s war 25 years ago, the town is a symbol of the broken politics that has haunted the Balkan state ever since. With two nationalist parties in power and unable to agree on voting rules, Mostar has not held local elections since 2008.  (Photo by ELVIS BARUKCIC/AFP via Getty Images)

 

About the Author(s)

Jasmin Mujanović

Jasmin Mujanovic is a political scientist and the co-host of the Southeast European affairs podcast "Sarajevo Calling." His first book, "Hunger and Fury: The Crisis of Democracy in the Balkans," is now available. Follow him on Twitter (@JasminMuj)