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.

Sarajevo/Brussels, 16 April 2002