Countries:Bosnia and Herzegovina
BOSNIA AND HERZEGOVINA (Republic of Bosnia and Herzegovina) Marie-Joëlle Zahar 1. History and Development of Federalism The Republic of Bosnia and Herzegovina (51,129 km2) is located in southeastern Europe. It borders Croatia, Serbia and Montenegro and has a very narrow (20 km) access to the Adriatic Sea. The territory of Bosnia and Herzegovina was the site of many conquests—Roman, Goth, Slav, Hungarian and Ottoman, among others.
In the twelfth century, Bosnia became a Hungarian banat (province). In 1376 Ban Stephen Tvrtko proclaimed himself King of Serbia and Bosnia. After his death, the kingdom disintegrated and by 1463, the Ottoman Empire had conquered most of Bosnia. It would remain an Ottoman province for the next 400 years. In 1878, the Congress of Berlin gave Austria-Hungary administrative rights over the area. By 1908, the Austro-Hungarian Empire had annexed Bosnia and Croatia. On 1 December 1918, following the overthrow of the dual monarchy, Bosnia and Herzegovina became part of the Kingdom of the Serbs, Croats and Slovenes under the rule of Prince Aleksandar I (1921-1934). In 1929, Aleksandar renamed the kingdom Yugoslavia (i.e., “Land of the South Slavs”). During World War II, the Axis powers invaded and dismembered Yugoslavia. With their support, a pro-fascist Croat puppet state was established on the territory of Croatia and Bosnia. At the end of the war, Josip Broz Tito, a Croatian communist and leader of the resistance movement known as the Partisans, created the Federal Socialist Republic of Yugoslavia. Bosnia and Herzegovina was one of the six republics that composed the federation.
Since Ottoman times, Bosnia has been home to a Slav Muslim population. The geographic and ethnic origins of the Muslim Slavs are the subject of scholarly disagreement. The Muslims of Bosnia-Herzegovina, who speak Serbo-Croatian as their mother tongue, have consistently emphasized their unique identity. Since World War II, however, both Serbs and Croats have claimed ethnic ties with the Muslim Slavs in an attempt to gain political advantage. In 1971, Tito promoted the Slavic Muslims (also referred to as Bosniacs) to a fully-fledged constituent Yugoslav people. The original constitution of Bosnia and Herzegovina was written in 1974 and modelled on the Yugoslav federal constitution of the same year, a charter that weakened federal institutions and decentralized Communist controls to the republican level. Under the 1974 constitution, Bosnia was endowed with a bicameral legislature: a 130-seat Chamber of Citizens and a 110-seat Chamber of Communes. The collective nine-member Presidency and the Prime Minister were to be selected from among members of the legislature. Government officials served a standard four-year term, except the President of the Presidency, who was to be elected from among the nine members for a one-year term. This rotating Presidency and the proportional representation electoral system were designed to reflect the republic’s ethnic diversity. In January 1990, the League of Communists of Yugoslavia agreed to surrender its monopoly on political power. Bosnia held its first multi-party elections that same year.
Three major nationalist parties dominated the political scene: the SDA (Stranka Demokratska Akcija led by Alija Izetbegovic), the HDZ (Hrvatska Demokratska Zajednice Bosne-i-Hercegovine led by Mate Boban) and the SDS (Srpska Demokratska Stranka led by Radovan Karadzic). Temporarily united against the Communist Party, a coalition of the three parties held the collective Bosnian Presidency. Strains would soon tear the coalition apart. The dismemberment of the former Yugoslavia had already begun. In 1991, a ten-day war failed to prevent the secession of Slovenia. In September of the same year, Macedonia declared its independence. The war in Croatia lasted seven months (July 1991 to January 1992). Upon recognition of Croatia’s independence by the European Community, Bosnia faced a stark choice: either remain in Serb-dominated Yugoslavia or declare independence too. In October 1991, Muslim and Croat members of Parliament—but not Serb members—approved the holding of a referendum on sovereignty. The referendum, held in February 1992, was boycotted by Serbs but 64.4% of eligible voters cast their votes and 99.7% of those votes favoured independence. In March 1992, Bosnia proclaimed independence and descended into war.
In March 1994, under international pressure, Bosnia’s Muslim and Croatian leaders signed an agreement in Washington, DC, that ended the conflict between the two groups and established a Muslim-Croat federation, officially called the Federation of Bosnia and Herzegovina. The federation became one of the two “entities” of Bosnia and Herzegovina. On 21 November 1995, Serb, Croat and Muslim leaders initialled a peace agreement at Wright-Patterson Airbase in Dayton, Ohio. This ended almost four years of conflict in which 250,000 people were killed, two million became refugees, and terrible atrocities were committed. The General Framework Agreement for Peace (GFAP, also known as the Dayton Peace Agreement or DPA) was signed by all the parties in Paris (14 December 1995) and became the basis for peace in Bosnia and Herzegovina. 2. Constitutional Provisions Relating to Federalism In Annex 4 of the Dayton Peace Agreement, the mediators and negotiating parties outlined a new national constitution for Bosnia and Herzegovina. Under its terms, Bosnia is a democracy consisting of two constituent entities: the Federation of Bosnia and Herzegovina, which is also known as the Bosniac-Croat Federation (thus establishing a federation within a federation), and the Republika Srpska (hereafter “the entities”).
The federal structures reflect the complexity of the ethno-territorial arrangement reached at Dayton. The entities share a central legislature, the Parliamentary Assembly of Bosnia and Herzegovina (Article IV)—consisting of a House of Representatives and a House of Peoples (note that there is a “House of Representatives” and a “House of Peoples” at the federal level and in the Bosniac-Croat Federation)—and a three-member collective Presidency (Article V). This central government is two-thirds Muslim and Croat and one-third Serb. The federal House of Peoples is comprised of 15 delegates—two-thirds come from the Bosniac-Croat Federation (five Croats and five Bosniacs), while the other third (five Serbs) comes from Republika Srpska (RS). Croat and Bosniac delegates are elected respectively by the Croat and Bosniac delegates to the federal House of Peoples. The National Assembly of Republika Srpska selects the Serb delegates to the federal House of Peoples.
The federal House of Representatives comprises 42 members, two-thirds elected from the Bosniac-Croat Federation and one-third from the Republika Srpska. The constitution does not specify how representatives are to be elected, only that they “shall be directly elected from their Entity in accordance with an election law to be adopted by the Parliamentary Assembly” (IV-2(a)). However, the two entities have adopted a proportional party list system according to which voters vote for a party rather than an individual. All legislation requires the approval of both chambers and decisions are made by a majority of those present and voting (IV-3(c), IV-3(d)). However, the constitution also stipulates that members attempt to ensure that the majority includes at least one-third of votes of members from each entity. Members of the Presidency (one representative from each group—Bosniac, Croat and Serb) are directly elected from the Bosniac-Croat Federation (Bosniac and Croat members) and from the RS (Serb member). The constitution delineates the rights and duties of both entities. The division of power is as follows. The federal institutions are responsible for: foreign policy and trade; customs; monetary policy; finances of the institutions and international obligations of Bosnia and Herzegovina; immigration, refugee, and asylum policy and regulation; international and inter-entity criminal law enforcement; the establishment and operation of common and international communications facilities; regulation of inter-entity transportation; and air traffic control (III-1). Additionally, the constitution allows the central institutions to take measures and create additional institutions as necessary order to preserve the sovereignty, territorial integrity, political independence, and international personality of the country (III-5). The same provision opens the door for the eventual transfer of responsibilities temporarily entrusted to the institutions created under Annexes 5-8 of the General Framework Agreement for Peace (GFAP) back to the central authorities.
All governmental functions and powers not expressly assigned in the constitution to the central institutions fall immediately within the preserve of the entities (III-3-a). The most important of these functions and powers must certainly be the power of taxation. The two entities are also responsible for civilian law enforcement, health care, agriculture and local affairs. However, in some cases, the entities may appear to intrude into the jurisdiction of the central government. Thus, although foreign policy is in the purview of the central government, the entities can establish relationships with neighbouring states, and enter agreements with foreign states and international organizations with the consent of the federal Parliamentary Assembly. The entity and central governments are jointly entrusted with the regulation of citizenship (I-5), the protection of the human rights enshrined in the European Convention on Human Rights and 15 other similar international instruments listed in Annex 1 of the constitution (II). The constitution does not specifically outline federal financial arrangements. It does, however, give the power of taxation to the entities, and provide general guidelines regarding the financial responsibilities of the entities vis-B-vis the federal institutions. Article IV-4(b) states that the federal Parliamentary Assembly has responsibility for “deciding upon the sources and amounts of revenues for the operations of the institutions … and international obligations of Bosnia and Herzegovina”. Under Article VIII-1, each year the Parliamentary Assembly adopts a budget covering these expenditures. The Bosniac-Croat Federation provides two-thirds and the RS one-third of the revenues required by the federal budget, “except insofar as revenues are raised as specified by the Parliamentary Assembly” (VIII-3). Under Article III-2(b) the entities are also expected to provide “all necessary assistance” to the central government in order to enable it to honour its international obligations. Article VI sets out procedures for the resolution of constitutional disputes. This article provides for the establishment of a Constitutional Court consisting of nine members. The Court has exclusive jurisdiction to resolve disputes between the entities, between Bosnia and Herzegovina and an entity or entities, or between institutions of the central government (VI-3(a)). The Court also has appellate jurisdiction over issues under the constitution arising out of the judgement of any other Bosnian court.
The Bosniac-Croat House of Representatives selects four members of the Constitutional Court and the Assembly of the Republika Srpska selects two members. The remaining three members are non-Bosnians selected by the President of the European Court of Human Rights after consultation with the Presidency (VI-1). The unusual appointment of foreigners to the Constitutional Court reflects international concerns about the fragility of the Dayton scheme and the heavy international involvement to bring about its implementation. Article X provides for amendments to the constitution to be based on a decision of the Parliamentary Assembly, including a two-thirds majority of those present and voting in the federal House of Representatives. It is important to note, however, that Article X specifically states that no amendment may eliminate or diminish any of the rights and freedoms listed in Article II of the constitution. This refers to the fact that the constitution includes a number of special provisions relating to human rights, refugee rights and the “vital interests” of the three constituent peoples of the country. These special provisions are a function of the circumstances surrounding the drafting of the constitution and its inclusion in the General Framework Agreement that ended the war in Bosnia. Article II-1 provides for the establishment of a Human Rights Commission for the country. This commission is comprised of an ombudsman appointed by the chairman of the Organization for Security and Cooperation in Europe (OSCE) and 14 members—six Bosnians (four members from the Bosniac-Croat Federation and two members from Republika Srpska) and eight non-Bosnians appointed by the Committee of Ministers of the Council of Europe, after consultation with the parties. Article II also states that the rights and freedoms set forth in the European Convention for the Protection of Human Rights and Fundamental Freedoms and its Protocols have priority over all other law (II-2), and contains a lengthy statement about the rights of refugees and displaced persons to return to their places of origin and have property lost in the hostilities restored to them (II-5). The constitution also requires that all competent authorities in Bosnia cooperate with and provide unrestricted access to international human rights monitoring mechanisms, the supervisory bodies established by the international agreements listed in Annex I to the constitution, the International Criminal Tribunal for the Former Yugoslavia, as well as any other organization authorized by the UN Security Council with a mandate concerning human rights and humanitarian law (II-8). Finally, a proposed decision of the Parliamentary Assembly may be declared “destructive to a vital interest of the Bosniac, Croat, or Serb people” (IV-3(e)). This provision allows members of the ethnic groups to block the enactment of contested legislation (IV-3(e)). In such instances, a joint committee including three members of each ethnic group reviews the legislation; if it fails to reach agreement, the matter is forwarded to the Constitutional Court (IV-3(f)).
A similar veto exists within the Presidency (V-2(d)). It is important to note that, although symmetrical in their relation to one another and to the federal institutions, the two entities are organized according to different principles. As its name indicates, the Federation of Bosnia and Herzegovina, or Bosniac-Croat Federation, is organized according to federal principles. It consists of eight cantons (territorial subdivisions) ruled by a strong central government. The Presidency, Vice-Presidency, and the office of the Prime Minister rotate between the two ethnic groups. The Bosniac-Croat Federation has a bicameral legislature comprised of the House of Representatives and the House of Peoples (also referred to as the House of Nations), in addition to canton-level assemblies. Federation voters directly elect the 140 members of the entity’s House of Representatives. The 74 members of the entity’s House of Peoples (30 Bosniac, 30 Croat, and 14 Other) are elected from members of the cantonal legislatures—themselves elected directly by the voters in the entity. The Republika Srpska (RS) is a highly centralized structure. The entity government directly oversees the municipalities, and cantons do not exist. The RS has a single legislative chamber or National Assembly (sometimes referred to as the House of Representatives), and a President. Members of the RS National Assembly are elected for a four-year term by simple proportional representation. 3. Recent Political Dynamics As the previous section will have illustrated, the government structure established at Dayton is extremely complex. Given this, it would be unwieldy even under optimal political conditions. The threat of paralysis is a major concern as nationalist parties have taken advantage of the complex structure to entrench themselves at the entity level. Cooperation between the entities is minimal. Even within the Bosniac-Croat Federation, Bosniacs and Croats have maintained separate lines of authority.1 Power sharing is premised on the willingness of the parties to compromise, but federal representatives of the three Bosnian ethnic groups have not demonstrated such willingness. Instead, the Office of the United Nations High Representative has gained a reputation for imposing solutions on the Bosnian parties whenever they reach a deadlock.
Under Annex 10 of the GFAP, the High Representative is mandated to “facilitate, as [he/she] judges necessary, the resolution of any difficulties arising in connection with civilian implementation” (Article II-1(d)). In 1997, the Peace Implementation Council, which represents all the donor countries, endowed the High Representative with the authority to make binding decisions including the right to remove “obstructionist” officials. The powers of the High Representative are only symptomatic of a larger trend. The Dayton Peace Agreement gives the Commander of the NATO-led Stabilization Forces (SFOR) analogous powers in terms of military implementation. Annex 3 of the GFAP provides the OSCE with a mandate to administer elections for all levels of government, a mandate that has been repeatedly extended beyond its original scope. Annex 6 established the Human Rights Commission for Bosnia, the highest judicial resort in human rights cases. As discussed earlier, the OSCE and the Committee of Ministers of the Council of Europe respectively nominate the commission’s ombudsman and human rights chamber, with a foreign majority. In recent years a number of major regional changes have occurred, including NATO’s Kosovo campaign, the death of Croat President Franjo Tudjman, and the overthrow of Slobodan Milosevic in Yugoslavia. These regional changes have spurred calls for accelerating Bosnia and Herzegovina’s post-conflict transition. However, opinions are divided on the means of achieving such an objective. Centrifugal forces include the growing strength of the multi-ethnic Alliance for Change, a coalition of 10 moderate parties, which won a slight majority in the November 2000 elections to the Bosniac-Croat Federation Parliament thus marginalizing the nationalist Bosniac SDP and Croat HDZ. Many observed, however, that despite years of effort and expense by the international community, the electorate still generally voted along ethnic lines. Before the elections, the OSCE’s Provisional Electoral Commission (PEC) changed the electoral procedures for the Bosniac-Croat Federation’s Parliament.
Initially Croat and Bosniac members of the cantonal assemblies elected their respective deputies to the entity’s House of Peoples. Under the new rules, members of the cantonal assemblies can vote for a deputy in Parliament irrespective of their nationality. In Republika Srpska, the nationalist SDS party managed to wrest 30 per cent of votes but failed to win the necessary support among other parties to form the government. The federal Constitutional Court has also issued a number of landmark decisions. The Court struck down the consociational arrangement enshrined in the Law on the Council of Ministers of 1996, thus effectively leaving the country without a government. The law, adopted when the federal House of Representatives failed in 1996 to achieve agreement on a single candidate, stated that the chair of the Council consists of two co-chairs and a vice-chair who occupy the positions on a rotating basis. This contradicts Article IV of the constitution according to which the chair of the Council is a single individual. Parliament enacted a law providing that Council chairmanship rotate among the three constituent peoples every eight months. Sidelining extremists continues to require the active involvement of the international community. In November 1999, High Representative Wolfgang Petritsch used his special powers to dismiss 22 officials from elected positions, targeting hard-line Serb Croat and Bosniac nationalist politicians. Earlier that same year, the OSCE refused to register the Serb Radical Party and the Serb Party of Krajina and Posavina for the April municipal elections.
The lists of both parties included persons accused of violating the Dayton Agreement. These elections—certified by the OSCE as fair and free—indicated that Croat and Serb nationalist parties continue to dominate at the municipal level while the Bosniac Party for Democratic Action (SDA) suffered significant losses in major urban areas at the hands of the multi-ethnic Social Democratic Party (SDP). More recently, the Croat National Democratic Union Party (HDZ) and the Croatian Democratic Union of Bosnia and Herzegovina (CDUBH) reacted strongly to the changes introduced by the Office of the High Representative (OHR) to the legislative procedures of the Bosniac-Croat Federation. In conjunction with the November 2000 general elections, the CDUBH organized a referendum of the Croat people asking whether they thought the Croat part of the Bosniac-Croat Federation should be given greater autonomy. In March 2001, the CDUBH held a Croat National Assembly, declared the Federation of Bosnia and Herzegovina (the entity) dead and proclaimed so-called Croat self-government. The Assembly stated that it would no longer recognize the authority of the entity government on the territory under Croat self-government. Relations between the CDUBH and the OHR continue to be tense.
4. Sources for Further Information Constitutional Watch-Bosnia, East European Constitutional Review. All volumes. Hayden, Robert M., “Bosnia: The Contradictions of “Democracy” Without Consent”, East European Constitutional Review, Vol. 7, No. 2 (Spring 1998). O’Hanlon, Michael, “Turning the Bosnia Ceasefire into Peace”, The Brookings Review, Vol. 16, No. 1 (Winter 1998). Western, Jon and Daniel Serwer, Bosnia’s Next Five Years: Dayton and Beyond, USIP Special Report (Washington, DC: USIP, 2000). http://www.bosnianembassy.org http://www.ohr.int http://www.odci.gov/cia/publications/factbook/geos/bk.html http://www.intl-crisis-group.org http://www.bosnia.org.uk http://www.nytimes.com/specials/bosnia/ http://www.washingtonpost.com/wp-srv/inatl/longterm/worldref/country/bosniahz.htm Notes 1. See Jon Western and Daniel Serwer, Bosnia’s Next Five Years: Dayton and Beyond, USIP Special Report, (Washington, DC: USIP, 2000), p. 2.