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The Dayton Constitution of Bosnia and Herzegovina

The Dayton Constitution of Bosnia and Herzegovina

12 The Dayton Constitution of and

James C. O’Brien

osnia and Herzegovina’s peace arrived 1. A constitution drafted as part of an effort in November 1995 after nearly four to end a conflict reflects the tensions that years of devastating warfare, the loss fueled the conflict. Bof a quarter million lives, and the displace- 2. When negotiating parties represent nar- ment of a million people. A key feature of row interests, international mediators the peace agreement that settled the conflict should broader interests, including was a new constitution for the new country, democratic governance and the constitu- © Copyrightdrafted by international mediators by and the nego- Endowmenttion’s capacity to evolve beyond theof imme - tiated by a handful of wartime leaders in the diate purposes of the negotiating parties. conference rooms of a U.S. Air Force base in 3. International leverage may be at its great- theDayton, United Ohio. States Instituteest when conflicts of are Peace being resolved. It The Dayton Constitution bears the scars may be better to address governance is- of the process that produced it. It was part sues at that point, rather than deferring of a compromise that reconciled the compet- them by adopting broad principles or in- ing interests of wartime factions while trying terim governing arrangements. to establish a in a 4. For a constitution crafted in a peace agree- state that had not yet completed its transition ment, implementation requires ongoing from socialism. As a compromise, it both en- negotiation and effort, just as the peace abled and constrained Bosnia’s transition to- agreement does overall. The Dayton nego- ward democracy, and the tensions within the tiations did not produce a clear mandate or document remain central to Bosnia’s experi- plan to address lingering obstacles to im- ence with state building. plementation. An arbitrarily short and un- The Bosnian constitution-making process realistic deadline to implement the peace provides four important lessons: agreement fully, imposed by the interna-

332 Framing the State in Times of Transition 333

tional community, prevented the interna- infamous speech to a massive crowd of tional community from engaging on im- in on June 28, 1989—the six hun- plementation as creatively and strategically dredth anniversary of an epic Serbian de- as it could have. This failure meant that feat that marked the beginning of Ottoman each step toward implementation required rule in the —Milosevic invoked that continual renegotiation, both within the historic event to suggest that the Serb na- international community and with Bos- tion was once again under threat and might nian actors. Implementation was thus need to employ force.3 Milosevic’s national- awkward, compromised, and hesitant. ist rhetoric and agenda provoked equal and opposite reactions from ’s other ethnic groups, particularly . Background Also throughout the , the Serbian Even before the war in Bosnia, the Yugoslav government sought increasingly to domi- political system had been under strain for nate the federal institutions, while years due to ethnic differences, economic in- and increasingly pursued a separatist equities, and weak political structures. While trend. Among other moves, in March 1989, the Party and the country’s paramount leader, effectively gained control of half the , held the system together in votes in the collective presidency, first, by reality, a convoluted constitutional structure pushing constitutional amendments through held it together in theory. In response to the system that virtually eliminated the au- discontent among the in the fed- tonomy of Kosovo and , and sec- eral system—especially Slovenia and Croa- ond, by co-opting . By mid-1991, tia, which resented the perceived Serb domi- the Yugoslav People’s Army ( JNA) was the nation of the federal government—the 1974 last fully functioning federal institution.4 federal constitution overhauled the system Though precipitated by the efforts of Mi­ and devolved tremendous authority to the re- lo­sevic’s Serbian government to dominate publics. Under the 1974 constitution, each of the federal system and the unwillingness of the six republics of Slovenia, Croatia, Bosnia key figures to negotiate a peaceful dissolu- and Herzegovina, Serbia, Montenegro, and tion, Yugoslavia’s actual death spiral began © CopyrightMacedonia, as well as the twoby autonomous the Endowmentwith Slovenia’s and Croatia’s declarations of of provinces of Kosovo and Vojvodina, which independence on June 25, 1991. Prompted by remained within Serbia in that constitution, international recognition of Croatian inde- thewas representedUnited in an eight-member States collec- Institutependence in of1992, PeaceBosnia followed tive presidency. The collective presidency, in suit in March 1992. While Slovenia, the turn, selected a prime minister. Though the westernmost , successfully extricated system survived Tito’s death in 1980, it was itself from the impending morass after a low- wired to produce confusion and deadlock.1 intensity ten-day conflict with JNA forces, As economic troubles mounted during the Croatia’s and Bosnia’s independence moves 1980s, canny politicians such as Slobodan prompted their large Serbian minorities— Milosevic in Serbia and Franjo Tudjman in and in Bosnia, the Croat minority—to seek Croatia promoted ethnic , from a realignment of borders. In Croatia, opportunism or belief. Given the threat that rebellious Serbs declared their own so-called nationalism posed to Yugoslav cohesion, eth- , which they sought nicity had been a taboo subject, and it proved to keep within the rump Yugoslavia. In Bos- to be a potent factor in the disintegration of nia, the nationalist Serb political party, the the state and the onset of civil war.2 In a now Serb Democratic Party (SDS), declared the 334 James C. O’Brien

creation of the “Republika Srpska,” which community was willing to impose a settle- they also sought to keep within Yugoslavia, ment if necessary, as it had been horrified by while nationalist Croats created their own atrocities committed by Serb forces when putative mini-state of Herceg-. The they overran the UN-protected enclave of drive to carve ethnically defined states out in July 1995 and worried about of territories with ethnically mixed popula- the war’s expansion. tions, and the support that the breakaway nationalist groups received from Milosevic (who controlled the JNA) and Tudjman in The Croatia, scuttled any possibility of a peaceful From August through October 1995, U.S. transition to independence for Bosnia and Assistant Secretary of State Richard Hol- Croatia. brooke led a team of U.S. negotiators in The war in Croatia began in summer 1991 multiple rounds of shuttle diplomacy in Bal- and lasted until summer 1995, when Croa- kan capitals and elsewhere. This process led tian forces defeated the Serbian Krajina re- to the November 1–21 peace conference at public; in the end, its backers in Wright-Patterson Air Force Base in Dayton, abandoned it.5 In Bosnia, the war erupted Ohio, at which the final peace agreement in 1992 and continued until autumn 1995, was negotiated and initialed. It was signed when new North Atlantic Treaty Organiza- the following month in Paris. tion (NATO) military activity, a newly vig- The Dayton Agreement—formally, the orous U.S. diplomatic effort, and, above all, General Framework Agreement for Peace a coordinated Croat and Bosniac offensive in —comprised an combined to reverse Serb gains. overarching framework agreement and eleven By 1995, after more than three years of annexes, one of which, Annex 4, was the new fighting, there was an opening for peace in constitution. Signed by the Republic of Cro- Bosnia. All sides had good reason to fear atia, the of Yugoslavia (now another winter at war. As a result of diplo- ), and the Republic matic initiatives in 1994, Bosnia’s Croats and of Bosnia and Herzegovina (the government Bosniacs—a multiethnic but predominantly of which, by this time, was dominated by the ©Muslim Copyright group that supported theby central the Bosnian Endowment ), the framework agreeof- government—were fighting and negotiating ment provided for the mutual recognition primarily in concert. Bosnia’s Serbs for the of the sovereignty of the three now-separate firstthe time facedUnited Croatian and StatesBosnian forces states Institute and acknowledgment of of Peace the terri­ that could take and hold territory; were with- torial integrity and political independence out their buffer sister entity in Croatia, the of Bosnia and Herzegovina. The signatories Republika Srpska Krajina, which had also committed themselves to respecting and defeated in August 1995; and were bent by promoting fulfillment of the provisions of pressure from their former sponsor in Bel- the annexes. Different constellations of par- grade. For their parts, Bosniacs were con- ties signed the various annexes: in some cases, cerned about cities incapable of breaking only the of Bosnia and Herzego­ Serb blockades, and Croatia and Yugoslavia vina (Federation)6 and the Republika Srpska saw more benefit to supporting peace than (RS); in other cases, those parties as well as war. Yugoslavia would see economic sanc- the signatories of the framework agreement. tions end and Croatia would finish its task The annexes covered a range of issues, from of reuniting its territory for the first time the military aspects of the settlement to elec- since independence. Finally, the international tions to and displaced persons. Framing the State in Times of Transition 335

The Dayton Agreement resulted in a Bos­ survived if the parties had rested over the nia based on the two “Entities,” the RS and the winter, with the international community’s Federation, which already de facto existed on willingness to commit to pursuing a peace Bosnian territory but did not recognize each agreement declining. other’s legitimacy. The Entities comprised a By ending shuttle talks, the unitary state under the new constitution of also added an element of drama to the cho- Bosnia and Herzegovina, which provided reography of its late entry into peacemaking for direct elections, international personality, in Bosnia. Business as usual—and after three and a set of powers and institutions for the years of shuttle talks of more or less intensity, central government adequate to carry out the they were business as usual—would not be responsibilities of statehood. The governing accepted. The call to a peace conference was structure was strongly decentralized, how- an element in preparing the environment for ever, with most government powers held at a push to concluding a deal. The location of the Entity level or below.7 the talks—in the United States, at a military base, after years of U.S. reluctance to become involved in Bosnia’s war—heightened the Structure of the Negotiating Process sense of drama. The Dayton talks were set up to close the peace deal or to fail clearly Structure of the Peace Negotiations: and dramatically; they were not intended Proximity Talks to be yet another stage in an ongoing peace The structure of negotiations is a compli- process. Finally, conducting a peace confer- cated question for any negotiation. There are ence far from the region allowed the United essentially three options: shuttle diplomacy; States to control participation. Prior peace proximity talks; and face-to-face negotia- negotiations failed in large part because the tions, as in a constitutional assembly. array of parties participating could manipu- By November 1995, shuttle diplomacy late the process, confident that another side had done what it was likely to do. From would reject a peace agreement. By having August to October 1995, an intense shuttle each side present, the U.S. negotiators could conducted by U.S. diplomats had produced tamp down these kinds of manipulations. © Copyrighta stable cease-fire, introduced by strong the NATO EndowmentWell into summer 1995, Bosnian of Serb military action, won agreement to some ba- leaders gave no sign of their willingness to ne- sic principles for a peace agreement and con- gotiate peace. In July 1995, the International thestitution, United and identified theStates key players who InstituteCriminal Tribunal inof The Peace Hague indicted would participate in final peace negotia- Radovan Karadzic and Ratko Mladic, the tions. Continued shuttling, however, would civilian and military leaders of the Bosnian have been less effective. It was difficult and Serbs. In August 1995, Holbrooke, the dangerous; three U.S. diplomats died on the U.S. negotiator, announced that the United shuttle in August. It would have left the par- States would not negotiate with Karadzic ties at home, open to influences and under and Mladic. Soon afterward, the patriarch pressure to disclose details that could dam- of the arbitrated age the peace talks. Bosnia remained at war an agreement under which Serbian Presi- in the time before Dayton. A cease-fire was dent Milosevic would effectively represent held together by exhaustion after months of Bosnian Serbs. Milosevic sought an end to intense fighting and expectations of a strong economic sanctions on the Federal Republic international military response to any breach. of Yugoslavia; he was not very interested in It is uncertain that the cease-fire would have the details of Bosnia’s governance. Given just 336 James C. O’Brien

enough to satisfy Bosnian Serb demands, he This allowed the international negotiators to would accept a peace agreement that Bos- control the pace and heat of proposals. No nian Serb leaders would reject. side knew another’s reaction to the proposals, Similarly, Bosnian Croats were represented or even whether negotiators would present by Zagreb. Bosnian Serbs and Bosnian Cro- them, which reduced posturing. When face- ats present at Dayton participated in some to-face negotiations took place, they were negotiating sessions, but each group was ex- private and focused on core issues at the end cluded whenever their patrons from Belgrade of negotiations. or Zagreb requested it. Both of these Bos- The Dayton environment, in short, was nian groups rejected elements of the settle- tailored to end a war. It did not resemble a ment. The head of the Bosnian Croat group constitutional assembly or roundtable either resigned and the Bosnian Serb leadership in involving representative elements of Bos- allegedly “fainted” when shown the final ter- nian society (and excluding meddling out- ritorial arrangement; neither group’s leader siders) or in permitting time for reasoned initialed the agreement at Dayton or signed deliberation. The negotiators were painfully it in Paris several weeks later. If shuttle di- aware of these defects. I discuss below how plomacy had continued, these groups would they were addressed within the constraints have remained separate voices, speaking from of the situation and may arguably have their own capitals through tame media. produced a set of governing arrangements One technical advantage of the Dayton ne- more democratic—and certainly more dur- gotiations has faded and possibly disappeared able—than could have produced forever: Participants agreed to negotiate un- themselves by the end of the war. der news blackout, a feat that would have been impossible in the later age of ubiquitous cell phones. Thirty-six months after Dayton, International Control of the Process Israeli-Palestinian talks were located at the Formally, negotiators Holbrooke and former Wye Plantation in rural Maryland in part Swedish prime minister convened because of poor cell-phone coverage there; the conference together. Holbrooke repre- five months after Wye, the Rambouillet ne- sented the : at the time, the ©gotiations Copyright outside Paris that sought by to avert the United Endowment States, , , of the NATO-Yugoslavia conflict over Kosovo , and , with first as an sprouted cell phones like , with informal and later a formal member. Bildt damagingthe leaksUnited prejudicing the States negotiations. represented Institute both the United of Nations Peace and the The international negotiators entered Day- . However, the U.S. govern- ton with the flexibility to choose proxim- ment had decided on its policy concerning ity or face-to-face talks. Other than a cer- the desired substantive outcome of the peace emonial plenary session, the parties stayed conference while the other international ac- separate for the first days, with negotiators tors decided theirs. The international nego- arranging separate sessions. One senior face- tiators consulted among themselves before to-face session was arranged; it produced and during Dayton until they reached agree- maximal demands and harsh recriminations. ment on proposals to offer to the parties. Talks thereafter proceeded mostly as proxim- The United States was the driving force of ity discussions. During negotiations, parties the negotiation, generally preparing papers, made proposals to the negotiators, not to the controlling the drafting process, and deciding other side. With few exceptions, this arrange- the timing for presenting proposed compro- ment was at the request of the party leaders. mises and written drafts to the parties. Nev- Framing the State in Times of Transition 337

ertheless, consultations among international dency generally was to decide by consensus, negotiators shaped the agreement to a large but on a limited set of issues, it could decide extent, and the process often was extensive by majority. and contentious. On the military, civilian im- The international community ruled Day- plementation, and police annexes in particu- ton by the sheer number of its participants. lar, discussions among the Contact Group A sizable U.S. contingent comprised repre- consumed much of the time at Dayton, with sentatives from the State Department, Na- the parties receiving texts late in the talks. On tional Security Council, Office of the Secre- the constitution, the Contact Group reached tary of Defense, Joint Chiefs of Staff, office broad agreement in the first days of Dayton, of the U.S. Permanent Representative to the though negotiations continued until the final , and other agencies. The Eu- day of the talks (see below). ropean Union had its envoy, his staff, and na- Each side had talented legal advisers, with tional delegations from the Contact Group. Bosnian Croats and Serbs represented often These delegations included senior political by lawyers from Croatia and Yugoslavia. The representatives (political-director level), law- Bosniacs had a team of international experts yers, technical experts, and support staff. who could work in the style of the interna- With these resources on site, international tional negotiators. The cultural differences negotiators could cover every aspect of the among lawyers—public international lawyers talks. Drafts of each portion of the text were and constitutional experts, U.S. and British developed by international lawyers, agreed lawyers used to working with ambiguous among the senior representatives of the Con- texts built to evolve, Europeans split among tact Group, and finally presented to the par- British and continental lawyers, ties. U.S. and European lawyers developed most closely tied to a strict interpretation separate draft constitutions over a period of of texts—slowed drafting but also allowed weeks before Dayton, but a unified draft was ideas to be examined carefully and provided agreed upon as the conference opened. for cross-fertilization among traditions while The first U.S. outline of a peace- agree keeping Yugoslav notions foremost. ment was prepared in late August 1995. The The significance of cultural differences draft drew heavily on previous peace efforts, © Copyrightwas apparent in debates over by the role the of the Endowmentincluding in particular the so-called of Invin - new Bosnian presidency. Negotiators from cible draft agreement (named after the Brit- a Yugoslav tradition wanted a presidential ish carrier HMS Invincible, on which peace thesystem, United and lawyers from States that culture ex- Institutenegotiations took place of in SeptemberPeace 1993) pected the powers to be extensive, with little and the Washington Agreement establishing room for interpretation. European lawyers the Bosniac-Croat Federation.8 It took orga- and negotiators maintained constant support nizational lessons from contemporary inter- for a strong government, headed by a prime national practice, including agreements con- minister and relatively autonomous from cerning , Ethiopia-Eritrea, and the presidency; they made the point that a Namibia. It suggested a set of broad principles Bosnia seeking to join should have to support an end to the war, to be included in a modern European style of governance. Ul- a general framework agreement, and a series timately, the constitution created a govern- of annexes on issues of specific importance to ment centered on a presidency comprising the parties and the international community. three members, one from each of the three These included governance, elections, human main ethnic groups, with the chair rotating rights, return of persons displaced by the war, among the presidency’s members. The presi- and other issues. The suggested outline was 338 James C. O’Brien

largely ignored for several weeks while shut- parent in negotiations of the substance of tle talks focused on obtaining a cease-fire. the constitution. For example, some posi- At several points in September 1995, U.S. tions asserted on the structure of the govern- negotiators discussed among themselves the ment reflected the aspirations of particular framework of a peace agreement. Most at- individuals for particular offices. In the final tention was devoted to security concerns, week of the Dayton talks—roughly No- though there was a general consensus that vember 14 to 21, 1995—attention turned to the parties would require a peace agreement governing arrangements. Several themes ran to include arrangements for governing Bos- through these talks, which took place at both nia. A more complete U.S. draft peace agree- the technical and the principals’ level. ment, including the core elements of a con- First, human rights guarantees were eas- stitution, was prepared at the end of the first ily accepted. The agreement enumerates a week of October. In the last week before the comprehensive list of human rights instru- peace conference opened, European experts ments and standards to be upheld in Bosnia; presented to the U.S. team a set of propos- lawyers could hardly write the provisions als, and the two were synthesized in Wash- quickly enough to stay ahead of the par- ington. Most of the work was done over the ties’ agreement. The agreement as a whole weekend before the talks began. reinforces the primacy of human rights by At Dayton, Milosevic reportedly greeted including annexes on several human rights Holbrooke by saying, “So, I hear that you are issues, such as the rights of refugees and dis- going to present us with an encyclopedia.” placed persons (Annex 7), rights and avenues In fact, the peace agreement was presented for redress for victims of human rights abuses to the parties piece by piece; the negotiators (Annex 6), and police monitoring and reform were trying to establish a steady pace of work (Annex 11). The provisions are to be enforced and a constructive environment. In the first by the international community, witnessing two weeks, relatively little attention was paid states, and Bosnian authorities. Moreover, to the constitution, as the bulk of work fo- the agreement requires cooperation with the cused on issues tangential to the final agree- International Criminal Tribunal for the For- ment, including the release of a U.S. journalist mer Yugoslavia and forbids fugitives from the ©being Copyright held by Bosnian Serbs, the byresolution the tribunal Endowment from engaging in political life. ofThe of a territorial dispute between Croatia and Dayton Constitution forbids any amend- the Federal Republic of Yugoslavia, and the ment that would “eliminate or diminish” strengtheningthe United of the Federation. Statesthe Institute human rights standards of that Peaceit requires, including European human rights law (see Article X[2]). The constitution also provides Substance of the Constitution that European human rights law—that is, The process by which the Dayton Constitu- the European Convention for the Protection tion was negotiated raised the real possibility of Human Rights and Fundamental Free- of locking in nationalist control of the coun- doms—“shall apply directly” in Bosnia and try. The international negotiators here faced “have priority over all other law” (see Article a dilemma. Nationalists already controlled II[2]). These simple sentences were little no- the country’s resources, military might, and ticed, except as an unexceptional statement fate, so they had to make the peace. It was of Bosnia’s desire to be part of Europe. clear from the start of negotiations that na- Second, the governing institutions and tionalists wanted to convert their wartime their composition received extensive atten- power into political authority. This was ap- tion from the parties. Two issues in particular Framing the State in Times of Transition 339

were controversial: the authority of the cen- IV[4]), the presidency (Article V[3]), and tral government, including mechanisms to the council of ministers (Article V[4]), and enforce individual rights; and the ethnic dis- the document grants other express powers to tribution of key positions in the gov­ernment. central institutions as well. From this point As a general matter, the Serb side, with sup- of view, the key sentence in the constitu- port from the Bosnian Croats, wanted a de- tion is Article III(3a), which provides that centralized state, with each ethnicity largely “all governmental functions and powers not responsible for governing areas in which its expressly assigned in this Constitution to the held a majority. There would institutions of Bosnia and Herzegovina shall be little if any intrusion by other governing be those of the Entities.” bodies, including the central authorities. This At Dayton, Bosnian Serbs and Croats produced a core compromise in the consti- pressed this position most often, as they tution. The central government—itself not sought to preserve their authority over those called a government, but simply “institutions parts of Bosnia where they expected to retain of Bosnia and Herzegovina”—was given political power. The Bosniacs opposed this jurisdiction mostly over areas agreed to be interpretation. They sought a more powerful necessary to carry out the responsibilities of central government, in which they expected statehood. It was acknowledged that only to have a majority. Also, the international central authorities could represent the coun- community wanted to ensure that Bosnia’s try in international organizations such as the central institutions could follow through on United Nations. legal obligations and political commitments It was more difficult, however, to address that would arise during the country’s post- subject matters in which central authority war reconstruction as well as its eventual en- was desired by one of the parties (usually try into European institutions. the Bosniacs) or could be efficient or helpful Both the language and the structure of rather than logically necessary. One agreed the constitution reflect the resulting - com solution was to provide the central institu- promise. Essentially, the central government tions with broad authority, but generally is given broad authority to ensure that Bos- phrased in terms of policy—as in “customs nia meets its legal obligations; those obliga- © Copyrightpolicy”—with the expectation by that the imple- Endowmenttions are framed in open-ended terms.of Re- mentation might be left to the two Enti- sponsibility for implementing obligations ties or to some special body established for a lies initially with the Entities or lower levels theparticular United purpose. In the Statesdocument, the line Instituteof government; with of the sentencePeace granting between policy and implementation is not them authority to carry out all “governmen- addressed, but left to give-and-take among tal functions and powers” not described in those responsible for implementing Bosnia’s the constitution (quoted above), the drafters constitution. intended to ensure that they had the author- The result of a compromise, the delinea- ity necessary to accomplish this. The drafters tion of the scope of the central government’s wanted to ensure that Entity governments, authority remains controversial. To some, the reluctant to enforce guarantees that might re- central government has limited authority ex- duce their power, could not excuse their non- pressly set forth in the constitution, particu- performance by claiming that their own En- larly in the specific subject matter listed in tity constitutions were limiting them. Under Article III(1). Additional specific authori- this interpretation, the possibility remains for ties are allocated to central institutions, in- the central institutions to take on responsi- cluding the parliamentary assembly (Article bilities not fulfilled by the Entities, provided 340 James C. O’Brien

that their doing so is necessary and appro- Bosnia and Herzegovina.” This gives the cen- priate to seeing that Bosnia meets its legal tral institutions responsibility beyond Bos- obligations under international law and un- nia’s legal personality, inferring a structural der the Constitutional Court’s particular ap- role in ensuring that the broad objectives of proach to interpreting Bosnia’s constitution. the peace agreement—reconciliation—and The issue of who decides whether the cen- of the constitution itself are implemented. tral institutions can act was left largely un- The Court has carried the central govern- resolved. It is clear that the central judiciary ment’s authorities beyond those enumerated, has extensive authority over Entity and lower into areas such as language (paragraph 34 of levels of government. The Entity and other Partial Decision II) and protection of private substate levels of government are subject to property (paragraph 12). decisions of the Constitutional Court, a cen- The court properly has refrained from tral government institution empowered to spelling out the circumstances under which act on referrals by central authorities and to the central institutions can act. The con­ hear appeals from courts in either Entity. The stitution deferred questions of central- establishment of the Constitutional Court government authority to the political judg- and the judicial system as a whole struck at ment of the people governing Bosnia. This a central assertion from earlier in the nego- is an that cannot be defined prospec- tiations, made most often by Bosnian Serbs, tively; probably it never can be defined en- that the Entities were to be the final arbiters tirely through judicial decisions. It will be of questions about whether international or a political negotiation among international, domestic legal obligations were being met.9 state, and substate political players. It seems Still, as mentioned above, the authority likely that, as the tensions surrounding the of the political institutions—the presidency, war end, the political authorities can decide council of ministers, and parliamentary as- on the basis of efficiency and structure to sembly—remains controversial. As Bosnia’s give ever more responsibilities to the central international commitments become more government. But the process is not a ratchet; intrusive in the society, taking on, for exam- responsibilities can also be taken away. ple, rules on education, ©a subject Copyright not addressed in the constitution, by the Endowment of the reach of the central government can be Architecture of the Central Institutions expected to grow, at least insofar as it en- The structure of the central institutions re- suresthe that United the Entities are implementingStates sulted Institute in a cumbersome of system. Peace Drawing the international commitments appropriately. from their experience under the Yugoslav This authority can be interpreted narrowly, system, the parties agreed from the start on as related only to issues needed to protect a multiperson presidency. But when Dayton Bosnia’s international personality, or more negotiations started, they had not yet debated expansively, as related to political decisions the extent to which a government should made in the exercise of Bosnia’s sovereignty. be constituted as the administration of the The Constitutional Court has endorsed the country, or whether powers would latter approach, declaring that the central be subordinate to the presidency. The Serb government has a role beyond its enumer- delegation strongly opposed establishing a ated powers, as part of its broad responsibility central government by name, so the “Coun- for taking actions “necessary to preserve the cil of Ministers” was established instead, sovereignty, territorial integrity, political in- with a “chair,” rather than a prime minister. dependence, and international personality of This body had the authority to implement all Framing the State in Times of Transition 341

functions of the central government, and it powers desired, provided leverage that the survived the negotiations with no clear limi- international community would have lacked tations on its power, which ultimately rests otherwise. on how little text is devoted to it. The parties also paid enormous attention Unfortunately, the absence of an interna- to ethnic aspects of governmental arrange- tional consensus in favor of a strong govern- ments, in both voting procedures and guar- mental system that might make up for the anteed spots in government.10 Throughout weakness of a multiheaded presidency cre- the series of Yugoslav peace negotiations up ated problems within weeks after Dayton. to and including Dayton, the parties had in- The High Representative agreed to have sisted on special voting rights in legislative the chair position rotated on an ethnic ba- bodies for ethnic groups. These usually took sis, even though the constitution deliberately the form of ethnic vetoes, whereby represen- omitted such a requirement (the weakness of tatives from one of the three major groups the High Representative is discussed below). could block any action by majority vote Human rights enforcement was an especially among themselves. In addition, the parties contentious area. All parties readily accepted paid close attention to who would get which the human rights principles, but they were government jobs. Public administration at all unwilling to sign on to any governmental levels was to be representative of the popula- arrangement that would have the authority tion, and seats in legislative bodies were allo- to intervene in the affairs of the decentral- cated at least in part by ethnicity. In the last ized government bodies they preferred. For days of negotiation, the parties insisted on example, the Dayton Constitution provides adding a second legislative chamber called that all government institutions would ap- the House of Peoples, in which Serbs, Cro- ply European human rights law to Bosnia; ats, and Bosniacs were equally represented. this provision was acceptable to all. The con- Election to the House of Peoples was gov- stitution goes further, however, by granting erned by Entity-level bodies controlled by jurisdiction to a central court, unforeseen in the dominant political parties. the parties’ negotiating positions, to order The presidency of Bosnia and Herze- Entity governments into compliance. An govina was created to involve three people, © Copyrightombudsman was given authority by to therequire Endowmentone Serb, one Bosniac, and one Croat. of Each specific actions of government authorities; was elected directly, a setback for the domi- individuals were given the ability to reach nant parties, which sought control over the theabove United Entity governments States by invoking do- Institutenominating and selection of process.Peace But eth- mestic administrative and judicial remedies nic guarantees ran deep. The Serb member or complaining directly to international ci- of the presidency was to be elected only vilian officials. from the territory of the Republika Srpska, Why were such provisions accepted? At and the Bosniac and Croat members elected Dayton, their voices muffled by Milosevic’s only from the Federation. This prevented representation, Bosnian Serbs could not ar- anyone not a member of one of those three gue that the entire peace agreement should groups from holding a seat in the presidency be jeopardized for the sake of their Entity’s and reinforced the Entities’ ethnic character. primacy, and Zagreb’s representatives were The rule was designed to protect the domi- not motivated to hold the line for Bosnian nant political parties, as representatives from Croats on this issue. In this respect, the bun- the three delegations met jointly to discuss dling of governance arrangements with a the rules for presidential and legislative peace agreement, which the larger regional elections. It was one of the few times that 342 James C. O’Brien

Bosnian Serbs represented themselves in Under the terms of the constitution, all negotiations. The Bosnian Serbs calculated Bosnian authorities were required to cooper- that the Republika Srpska would remain ate with the Tribunal and fugitives from it Serb-controlled, leaving Bosniacs and Cro- were forbidden from holding public office, ats to vote in the Federation. Moreover, the a stipulation enforced by checking electoral Bosnian Croats were concerned that Croats lists and lists of persons holding such offices. from the Republika Srpska would be less na- This process was ineffective at first. Karadzic tionalistic than those from the territory of retained his title as president of the Repub- the self-proclaimed rump state of Herceg- lika Srpska until July 1996, seven months Bosna, which lay inside the Federation and after Dayton, and war-crime suspects—a had little interest in including more moder- broadening of the constitutional require- ate Croats within their electorate. ment—held public office at lower levels for Various parties sought additional guaran- more than a year. But the mechanism be- tees, including a demand that each member came more effective over time, as the High of the presidency be selected by a caucus of Representative, the Organization for Secu- the largest party connected with each ethnic rity and Cooperation in Europe (OSCE), group; given the dominance of the national- and international police monitors vetted ap- ist parties and the few nonnationalist parties’ pointees and candidates for public office with rejection of explicit ethnic group affiliation, the Tribunal. this arrangement would have locked the presidency into nationalist control. Interna- tional negotiators, however, rejected this last The Tension at the Heart proposal as incompatible with an agreement of the Dayton Constitution negotiated under international auspices and In fact, however, the human rights provisions purporting to establish a democracy. The in the constitution are at odds with the eth- parties apparently knew this, as their more nically based provisions that the parties in- far-reaching proposals were not made in the sisted upon: Key provisions that nationalists presence of their own international advisers. relied on in deciding to accept the constitu- The Dayton Agreement embedded in tion and the broader peace agreement are in- ©Bosnian Copyright law obligations toward by the Inter the- consistent Endowment with contemporary European of and national Criminal Tribunal for the Former international human-rights norms regarding Yugoslavia. Persons indicted by the Tribunal individual rights and equality of citizens. The werethe forbidden United from participating States in negoti- ethnically Institute based provisions of in the Peace constitu- ations or holding public office.11 This require- tion, which reflect a notion of ethnic group ment followed from the U.S. decision lead- rights, not protection of minority rights, may ing to Dayton that persons indicted by the be vulnerable to legal attack. Tribunal would not be allowed to participate The ways in which the parties sought to in the negotiations. Beneficially, this princi- protect themselves against political compe- ple removed from talks Bosnian Serb leaders tition at the Entity level—such as by de- Radovan Karadzic and Ratko Mladic, who claring the Entities in their constitutions to had shown themselves unwilling to conclude be “constituted” by some but not all ethnic peace agreements. It provides an example of groups in Bosnia, and by limiting eligibility how the pursuit of justice can promote peace. for key offices to citizens from specified eth- Holbrooke has said that without the Tribu- nic groups—has already begun to unravel. In nal, it would have been much more difficult 2000, the Constitutional Court established to conclude an agreement. pursuant to the Dayton Constitution de- Framing the State in Times of Transition 343

cided that because the constitution of Bos- ments until after a peace agreement was se- nia and Herzegovina recognizes the equality cured? In the run-up to Dayton, negotiators of all three “constituent peoples” it names— discussed alternatives to a full constitution, Bosniacs, Croats, and Serbs—so too must including an interim arrangement; a deci- the constitutions of both Entities recognize sion to extend the Federation to incorporate all three groups as “constituent peoples.”12 Republika Srpska; and even the adoption The decision declared unconstitutional sev- of simple governing principles to serve for eral provisions in each Entity’s constitution, an interim period until permanent arrange- including a provision in the RS constitution ments could be struck. None of the alterna- that “Republika Srpska shall be a State of the tives received lengthy consideration, however. Serb people and all of its citizens” and one Simply put, the interests of all of those in the in the Federation constitution that excluded talks argued for a full constitution. Each of Serbs from “constituent people” status.13 the warring factions wanted lasting govern- More generally, the Court found that provi- ing arrangements to lock in what they had sions reserving public office for members of gained by fighting and what they hoped to particular groups, or those granting a veto to gain at peace talks. The Bosniacs insisted that one or two groups, are a serious breach of the Bosnia be a single state, with no provision for Convention on Racial Discrimination and any group or territorial area to withdraw. The of the constitutional principle of equality of Croats insisted on being an equal partner in peoples.14 governance, even though they were the small- While the Court decision was a step for- est of the three groups. The Serbs demanded ward in enhancing the rights and opportuni- a decentralized state, in which their self- ties of Bosniacs and Croats in the RS and proclaimed Republika Srpska could govern Serbs in the Federation, like the Dayton with little interference from the national cap- Constitution itself, it failed to advance the ital. Finally, international negotiators, weary interests of citizens who were not members of the strains that the war in Bosnia imposed of any of the three groups, or who chose on and eager to move not to identify themselves by ethnicity. The the Bosnia crisis off the front pages, were Court felt constrained by the constitution’s looking for a final peace settlement, rather © Copyrightethnic architecture, and its decision,by theas well Endowmentthan a step in a process. An interim of solution as a subsequent implementing agreement, would have deferred these issues when the therefore maintains the principle of eth- parties asked for them to be resolved. thenic divisionUnited of power thatStates is at the heart InstituteMoreover, the parties’ of negotiatorsPeace would of the Dayton compromise.15 Nevertheless, not have agreed to the broad outlines of the the parties almost certainly would not have peace without assurances that their influ- accepted such a result had they foreseen it. ence would continue in peacetime Bosnia. The Bosnian Serbs in particular expected the In some instances, this was a very personal Dayton Constitution to protect the status of struggle, as individual negotiators eyed the the RS as a Serb enclave, not to be a basis jobs they wanted and tried to shape the gov- for insisting on the equality within it of the erning arrangements favorably to their future three “constituent peoples” of the state. positions. Representatives of all three domi- nant and nationalist Bosnian political parties watched the details of negotiations carefully Perceived Need for a Complete Constitution to ensure that any arrangement maintained, Would it have been better to postpone the or even improved, the privileges of their party drafting of detailed constitutional arrange- and ethnic group. 344 James C. O’Brien

The pattern of Bosnian negotiations- re negotiated in the weeks leading to Dayton. flects the parties’ preference for durable As negotiators shuttled around the region, governing arrangements. In the Carrington they arrived at two sets of principles, agreed plan of late 1991, the Vance-Owen plan in upon in September 1995. These short docu- 1993, the Washington Agreement of ments, examined minutely by the parties, set February 1994, and the Contact Group plan the parameters for the Dayton Agreement. in summer 1994, the parties paid close at- They display an intention, especially from the tention to governing arrangements. Each Bosnian Serbs, to create a weak government contained specific principles and even full with vague and unenforceable commitments constitutions. By the time the Dayton talks to European norms; coercive power would opened in autumn 1995, the parties expected rest not in representative governments but a peace agreement to include durable consti- in the hands of executives at the head of each tutional arrangements. Entity. For example, the principles did not The international community also had provide for a judiciary but instead provided little interest in an intrusive civilian pres- that the Entities would seek to resolve dis- ence that could govern Bosnia without full putes through arbitration. This would have arrangements for Bosnian self-rule. The in- left citizens in one Entity without practical ternational military presence was limited ini- recourse in the other and, in fact, would have tially to one year, and without military force, left a central government without the abil- the civilian international authority would be ity to enforce constitutional requirements on unable to prevent wartime factions either either Entity. It was a proposal for a union from returning to war or achieving their ends from a feudal age, not a modern European by other means. In that environment—driven state. by an arbitrary deadline—the maximum in- The principles constrained negotiations ternational leverage to decide governance was at Dayton, as negotiators promised that the during the peace negotiations, at the start of principles would be respected in any final the international presence, rather than in the negotiation. As events unfolded, the inter- face of a self-imposed, arbitrary deadline. national negotiators’ leverage increased as a In addition, a full constitution allowed the peace agreement neared, so that it became ©introduction Copyright of more intrusive human by rights the possible Endowment late in the talks to include items— of provisions as well as provisions allowing the such as a Constitutional Court—that had constitution to evolve as Bosnia and its re- been impossible when the principles were gionthe moved United toward EU membership. States None discussed. Institute of Peace of the parties would allow itself to be seen as rejecting clear-cut European norms. The postwar European institutions are heavily Public Participation lawyered, and the web of norms, standards, There was no public involvement in Day- and organizations relate to one another in the ton negotiations. Negotiations took place nuanced, cross-referenced, and oblique lan- under a blackout, with neither informal guage of the law. By importing that language public consultation during negotiations—un- into the constitution, international negotia- like the Good Friday accord negotiations in tors insulated these European norms—and Ireland—nor formal public or democratic ap- the aspirational aspect of the constitution— proval thereafter. Upon the peace agreement’s from direct challenge. signature in Paris, the constitution took effect Indeed, the full constitution reflects a sub- without any provision for approval by legisla- stantial advance from the preliminary texts tures or popular votes. At Dayton, the parties Framing the State in Times of Transition 345

signed an agreement in which they acknowl- were intended to remedy the lack of popular edged that by initialing the text at Dayton, engagement in the negotiation or ratification they agreed to be bound by the peace agree- of the agreement, open the possibility that ment. The constitutions of the two Entities, new leaders might emerge, and demonstrate which had been adopted through democratic that conditions in Bosnia had improved, to processes, albeit of questionable legitimacy cement international approval for the inter- and under wartime pressure, were required vention there. The elections did reduce na- to be conformed to the Dayton Constitu- tionalist percentages in the governments of tion. International negotiators were not en- each Entity, but nevertheless, the elections tirely comfortable with the approach, which were conducted quickly in an environment seemed less than perfectly democratic. Still, insufficiently recovered from wartime ha- without much controversy, the lawyers pro- treds. There was substantial risk that elec- posed and the Contact Group accepted that tions would convey a sense of legitimacy on the new constitution would enter into force wartime leaders, without there having been a once its was signed. The reason was simple: electoral process robust enough to their It would end the war. Parties had manipu- leadership. lated previous peace negotiations by pleading The international community designed a incapacity to conclude an arrangement with- set of safeguards that were incorporated into out consultations or democratic approval at the Dayton Agreement. Most important, the home. OSCE organized and conducted elections Still, the democratic deficit was not as and did not allow nationalist parties to do great as it might have been. The parties were so.16 Terms of office resulting from the first encouraged to seek approval of the consti- elections were kept short. The OSCE set a tution from their relevant legislative bodies. pattern of extensive regulation of political They were warned, however, that they should parties, including codes of conduct and fi- not find themselves unable to deliver ap- nancial requirements. These became impor- proval. Ultimately, both Entity tant tools for sidelining obstructionists over approved the constitution. The process of the next few years. conforming Entity constitutions to Dayton, © Copyrightwhich took several months, by allowed the them Endowment of to invoke the constitutional mechanisms The Role of the International Community for amendment. However, the process after the Dayton Peace Talks theworked United badly if at all. The States High Represen- InstituteRecognizing that theof Dayton Peace constitution tative was forced to direct the RS authori- would not be implemented well immediately ties to amend their constitution, and the upon signature, international negotiators de- amendments proposed were minimal, leav- cided to put in place an interim international ing a document still largely nationalistic in administrator who could provide broad po- character. In 2003, nearly eight years after litical guidance and also serve as the civilian Dayton, the High Representative again or- interlocutor for the powerful international dered amendments to the RS constitution. military force entering Bosnia. Annex 10 of The process of amending Entity constitu- the Dayton Agreement therefore establishes tions was theoretically adequate but in prac- a High Representative who is “the final au- tice unsatisfactory. thority in theater regarding interpretation of The Dayton Agreement also called for this Agreement on the civilian implementa- elections no later than nine months after the tion” of the peace settlement. This mandate agreement’s entry into force. These elections deliberately tracks that of the commander of 346 James C. O’Brien

the international military force, who is the The problem was particularly acute regard- final authority with regard to military as- ing civilian international bodies. For the High pects of the agreement. Representative to carry out his mandate, he However, the negotiations at Dayton did would need to be able to set priorities and not address basic questions about the High enforce them, including through instructions Representative. What body would provide to civilian agencies. The Dayton Agreement political oversight of the office? A peace did not give him this authority. Instead, al- implementation council (PIC) comprised of though he can “coordinate” their activities, he donor states was formed to serve this role, is required to “respect their autonomy within but not until several weeks after Dayton their spheres of operation” while providing concluded. More direct guidance was pro- “general guidance.” The agencies themselves vided by a steering board of the PIC, again were “requested to assist” the High Represen- composed of major donors. The High Rep- tative by providing information, but nothing resentative had neither staff nor budget for more (see Annex 10, Article II[1c]). The High some time after Dayton; staff was loaned Representative had no authority over military from interested states and organizations, but commanders, which was appropriate for se- this process took weeks, even months. curity purposes but left the High Represen- More important, there was little agreement tative as just about the only official in Bosnia within the international community on how without armed force to back up his decisions. the High Representative should carry out A proposal by the High Representative to his mandate and how intrusive his authority seek line authority over international agen- should be vis-à-vis Bosnian institutions and cies met fierce opposition from the interna- officials. Initially, civilian implementation tional organizations affected and was rejected was hamstrung by a mistaken pledge that by the informal group of states supervising military implementation would end twelve the office. As a consequence, even when the months after the operation began. That year High Representative attempted an initiative, would be taken up by basic reconstruction he had to negotiate extensively with an ar- and cease-fire implementation, leaving little ray of ad hoc and institutional international space for the High Representative to assume actors. The cost in time and attention—let ©a direct Copyright governing role. by thealone Endowment the difficulties of obtaining of political The inattention to civilian implementa- support—reduced the High Representative’s tion had direct consequences for Bosnia’s ability to act. ­politicalthe settlement,United including States efforts to InstituteThe problem was rooted of partly Peace in the pro- breathe life into the new constitution. In- cess by which the constitution was negoti- ternational governance—such as was later ated. The Bank, specialized agencies of put in place under UN authority in Kosovo the UN system, the European Commission, and East Timor in 1999—can be a power- the OSCE, and other multilateral groups ful interim device for stabilizing a post- were invited to attend the peace conference conflict political environment and preparing but not promised specific roles. Some did ap- the transition to local self-rule. It can allow pear at Dayton, but their actual involvement wartime emotions to cool, remove obstruc- was very limited. With few exceptions, they tionist elites from the scene, and permit rea- provided advice to international negotiators soned deliberations for a permanent consti- rather than directly to a negotiating party. tution. In Bosnia, however, the international This limited participation made sense strictly civilian mechanism was structurally weak in terms of ending Bosnia’s war. None of the and without a strong mandate.17 groups could drive the negotiations to conclu- Framing the State in Times of Transition 347

sion, and several were controversial in Bosnia, control and it restricted the possibility of particularly the United Nations; their overt, amendment. Moreover, today the constitu- active participation would have complicated tion remains as Bosnia’s founding document. efforts to reach peace. Their marginal role had Bosnians themselves accept it as the basis consequences for the agreement, however. Ne- for the country’s political system, even those gotiators and parties did not have the benefit who want to see it amended. of their expertise, and this hurt, especially on In short, the Dayton Agreement was an economic issues such as establishing a cen- ambitious and historic achievement. In Bos- tral bank (required by the agreement but still nia, it stopped a brutal war. It also healed renegotiated until 1997) and reducing pub- a breach in the United States’ relationship lic control over the economy, both through with Europe that had been opened by several privatization (begun haltingly in 1998) and years of disagreement and lack of coopera- lessened government expenditures. The gov- tion over how to handle the crisis. But the ernment structure established in the Day- achievement came at a price. The agreement ton Constitution, combined with the 1994 bought off wartime leaders, and the consti- Bosniac-Croat Federation government and the tution was the price tag. The constitution residual Republika Srpska government, left allocates political positions by ethnicity and Bosnia with a bloated public sector and an ab- allows for a huge governmental structure so surd ratio of public to private expenditures. that there are enough seats for each faction’s In addition, the marginality of specialized followers. It fails to take on the roots of na- international agencies deferred negotiations tionalist control over the country’s resources, among the international community about employment, culture, and political agenda. It both the road map for implementation and also leaves untouched the assumption—put the desired end state. There was little talk starkly by participants in the negotiations— at Dayton itself about priorities for starting that Bosnia’s future would be determined by civilian implementation quickly. This discus- the people who led it during the war. The sion began several weeks after Dayton, when continued influence of these wartime par- the specialized agencies were focused mostly tisans required an international presence in on carrying out their own mandates and un- Bosnia that was larger, more intrusive, and © Copyrightwilling to consider whether theyby should the cede Endowmentlonger lasting than was expected of or agreed control to others. These bodies did not agree upon at Dayton.18 to submit to the authority of the High Rep- Subsequent peace negotiations in the Bal- theresentative. United Instead, each agencyStates prepared its Institutekans and elsewhere haveof reacted Peace to Dayton’s own approach without the central authority nationalist hangover. In Kosovo, East Timor, having the ability to set priorities and enforce and parts of Africa, international media- them, either on the international agencies or tors deferred constitutional negotiations un- on the parties. til after conflicts have ended. The attraction of insulating constitutions from the pressures of conflict resolution are inarguable, and it is Conclusion healthy to allow a constitutional process to The Dayton Constitution set up an ongoing mature into one that is less confrontational, political struggle between central and Entity more inclusive, and more deeply rooted in control over Bosnia’s economic and political postwar realities. life. It did not dictate strict rules on these But delay and separation are narrow infer- matters, but it did set individual rights and ences that omit key lessons of the Dayton international security issues outside Entity experience. The constitution builds into it 348 James C. O’Brien

human and civil-rights standards and en- tatives and with the parties, at each stage of forcement mechanisms far stronger than the implementation. parties would have accepted on their own, even after a few years. International leverage to incorporate these standards might have Notes been much less several years after the end of 1. Central Intelligence Agency (CIA), Of- Bosnia’s bloody war. Paradoxically, therefore, fice of Russian and European Analysis,Balkan Bat- tlegrounds: A Military History of the Yugoslav Conflict, the Bosnia example shows that there are cir- 1990–1995 (Washington, DC: CIA, 2002), p. 43. cumstances in which it is possible to achieve 2. CIA, Balkan Battlegrounds, p. 44. more—eventually—only by addressing gov- 3. Laura Silber and Allen Little, The Death ernance prematurely. of Yugoslavia (New York: Penguin Books, 1995), The process of implementing the consti- p. 72. tution has encountered difficulties in making 4. CIA, Balkan Battlegrounds, p. 45. real the ideals it contains. This is true partly 5. Silber and Little, , because these aspects, even though they are p. 386. contained in the final text, were not agreed 6. The Federation, which joined the terri- fully among the parties or the international tories of the Bosnian Muslims (Bosniacs) and the community at Dayton, a function of limited Bosnian Croats, was created pursuant to the U.S.- brokered Washington Agreement in February 1994. time and the importance of other objectives. Prior to that agreement, those two groups were en- The difficulties also arose because the more gaged in a conflict with each other separate from aspirational aspects of the constitution only the conflict between both groups and Serb forces. gradually became realistic in the years fol- The agreement gave rise to military coordination lowing Dayton, as the states in the region es- that greatly improved Bosnian Muslim and Bos- nian Croat fortunes versus the Serbs, but political tablished themselves as credible members of integration within the Federation continues to be a a European neighborhood built on democ- challenge to this day. racy and respect for individual rights, and 7. A nicely nuanced description of the con- the international community became willing text and the agreement by one of the participants to include them in the post– II appeared soon after Dayton was concluded. See European institutions.19 Ivan Simonovic, “Dayton: The State, the Law, and The text of the constitution contained Interests in International Relations,” -Ost Jour- © Copyright by thenal, vol.Endowment 1–2 (1996), pp. 13–14 (copy on file of with certain fundamental principles that did not author). Ambassador Simonovic was legal adviser to mean much in practice at first, and in fact the Croatian delegation at Dayton and later Croa- werethe barely United noticed, but which couldStates be built tia’s Institute permanent representative of to the Peace United Na- upon later as the political situation stabilized tions. In different jobs he played important roles in and matured. A constructive procedural les- both negotiating and implementing Balkan peace agreements throughout the . son from the open-ended nature of the text 8. Paul C. Szasz, “The Quest for a Bosnian is the importance of implementation: the Constitution: Legal Aspects of Constitutional Pro- need for a process that could interpret the posals Relating to Bosnia,” Fordham International norms in the document broadly, in a way Law Journal, vol. 19, no. 2 (December 1995), pp. 363, that compelled political compromises along 370–73. with a strong international presence on the 9. This Serb position was the genesis of An- ground authorized to support the forging of nex 5, the Agreement on Arbitration. In Septem- those compromises. A negative procedural ber 1995, the Serbs insisted that all disputes would be resolved between the Entity governments, and lesson is that failure to agree at the start on this proposal was included in the principles for the the desired end state requires continual re- negotiations announced in Geneva and New York. negotiation, among international represen- Once the parties agreed at Dayton on a judicial sys- Framing the State in Times of Transition 349

tem in which individuals could bring cases directly 17. It was not until 1997, in a meeting in against governments, and in which a central court Bonn, Germany, that the Peace Implementation system would have the authority to review Entity Council approved an expansive interpretation of the decisions, the proposal lost most of its purpose. High Representative’s authority to include powers 10. The word ethnic is used because that is to order the promulgation of laws, remove officials how the parties referred to their own group identity. from office, and make other binding decisions to There is no ethnic difference among Serbs, Croats, “facilitate the resolution of difficulties” in imple- and Bosniacs, but appeals to national origin were mentation and ensure the “smooth running” of the abused throughout the Yugoslav conflict. government. These are commonly referred to as the 11. Article IX(1) of the constitution provides High Representative’s “Bonn powers.” See OHR, that “no person who is serving a sentence imposed Peace Implementation Council Bonn Conclusions, De- by the International [Criminal] Tribunal for the cember 10, 1997, section XI, available at www.ohr. Former Yugoslavia, and no person who is under int/pic/archive.asp?sa=on (accessed April 12, 2009). indictment by the Tribunal and who has failed to 18. David Kanin sees this as part of a general comply with an order to appear before the Tribunal, pattern in which external actors impose political may stand as a candidate or hold any appointive, goals and related legal structures on Balkan socie- elective, or other public office in the territory of ties, which he argues are built around “Big Men”— Bosnia and Herzegovina.” figures whose influence and economic power exist 12. For an analysis of this Court decision, outside these externally generated structures and see Anna Morawiec Mansfield, “Ethnic but Equal: survive changes in them. See David Kanin, “Big The Quest for a New Democratic Order in Bosnia Men, Corruption, and Crime,” International Politics, and Herzegovina,” Columbia Law Review, vol. 103, vol. 40, no. 4 (December 2003), pp. 491–526. Kanin no. 8 (2003), p. 2052. knows the region well and I subscribe to much of his analysis. His near-fatalism about the dominance 13. Office of the High Representative (OHR) of these big men is itself a policy choice, however, and EU Special Representative, Constituent Peoples’ and one that would deny people of the a Decision of the BiH Constitutional Court, Septem- chance to create their own alternative power struc- ber 14, 2000, available at www.ohr.int/ohr-dept/ tures. Even if one accepts that there will be big men ­legal/const/ (accessed April 12, 2009). in the Balkans, however, it still seems to matter who 14. OHR, Constituent Peoples’ Decision, Partial they are; those in the 1990s were spectacularly de- Decision III at paragraph 116. For a sophisticated structive. Even more, societies may flourish if the analysis of how European human rights law can af- big men remain but are driven to the margins of po- fect the ethnic participation and voting schemes of litical and legitimate economic life. Effective public Dayton, see G. Nystuen, “Conflicts of Norms Re- policy may attack the syndicates that connect big © Copyrightgarding Ethnic Discrimination inby the Dayton the Peace Endowmentmen to political, economic, and criminal of power in Agreement,” doctoral thesis, University of , well-coordinated, homeostatic networks of big men. 2003 (copy on file with author). See Council on Foreign Relations, Balkans 2010: the 15.United See OHR, Agreement States on the Implementa- InstituteA Center for Preventive of Action ReportPeace (New York: tion of the Constituent Peoples’ Decision of the Consti- Council on Foreign Relations, 2003). I was a mem- tutional Court of Bosnia and Herzegovina, March 27, ber of the task force that produced that report. 2002, available at www.ohr.int/ohr-dept/legal/const/ 19. The Council of Europe has admitted Bos- (accessed April 12, 2009). nia and Herzegovina (April 2002), Croatia (No- 16. Serb opposition to OSCE conduct of the vember 1996), and Serbia and Montenegro (April elections was intense and lasted until late in the 2003) as members. Croatia has joined NATO’s negotiation, most likely because of Yugoslavia’s sus- (PfP) (May 2000) and is ne- pension from the OSCE. Instead, the OSCE’s re- gotiating full NATO membership. Both Bosnia and sponsibility was supervision, a term unprecedented Herzegovina and Serbia and Montenegro are ne- in this context but interpreted, publicly and clearly gotiating PfP membership. Croatia also is currently by negotiators, as requiring that the OSCE assume negotiating accession to the European Union. all responsibility for the elections.

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