Without a renewed push for Constitutional Reform, Bosnia will remain dangerously adrift – its politics a continuation of war by corrupt means.


Published February 12, 2013

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With the European Union in crisis, it is remarkable that Balkan nations are still queuing up to become members of the  Brussels-based organization. Thankfully, for a region still dogged by inter-ethnic mistrust, deeply inefficient ex-socialist economies and weak civil society, the EU still holds some luster.

Even Kosovo, which cannot yet sign a formal contract with the EU and is not recognized by five EU states, is motivated to engage in dialogue with Serbia just to advance its relationship with the EU.

However, one country in the Balkans stands out as an exception: Bosnia-Herzegovina.  Despite having a formalized relationship with the EU at its disposal, a prominent EU Mission in Sarajevo, and years of coaxing on EU requirements, the EU magnet holds no meaningful attraction either for Bosnia’s leaders or ordinary citizens.

They may say they want to join the EU, but their actions and their votes prove otherwise.  Rather than work together for the shared goal of joining the EU, Bosnians have shown year-after-year, election-after-election that they prefer to emphasize their communal, ethnic differences over shared, national interests.

Why is this the case?  Why is Bosnia alone seemingly uninterested in enhancing its EU prospects?  The answer lies primarily in its peace accord, the Dayton Agreement, which ended the war but left the country saddled with an inefficient, costly  governing  apparatus that only preserves the zero-sum dynamics of the war.

Dayton’s ethno-territorial construct provided a nearly mono-ethnic “entity” for the Serbs, who had fought precisely to avoid coming under the thumb of feared ‘Muslim domination.’

It is no wonder that, in the peace that followed, the Serbs have sought at all costs to protect the quasi-state powers of  the “Republika Srpska” RS, as against the encroachment, however theoretical, of the weak central state.  An electoral system that provides no reward for politicians to reach across the ethnic divide only reinforced these centrifugal tendencies.
Throw in the control that politicians have over unreformed state-owned or quasi-state enterprises, and their control over patronage positions, and you have the Bosnia of today: a stagnant pool of special interests that continue to cleave along ethnic lines.  The attraction of the EU has had virtually no impact in changing this.

Was it always like this?  The answer is no. For a brief moment, under the reign of then High Representative Paddy Ashdown, Bosnia’s prospects were not so dim. Walking in determined fashion and carrying the big stick of “Bonn Powers” (plenipotentiary powers to impose legislation or remove officials), Ashdown managed to goad the recalcitrant parties into agreements that put the Bosnian state on the cusp of functionality.

With his departure at the end of 2005, Bosnia and its international overseers were at the cross roads: either complete the work of Ashdown by forging a breakthrough pact to change the Dayton Constitution and remove the most serious remaining obstacles to the functioning of the central state; or yield to the demands of outside critics to give “ownership” of Bosnia’s institutions back to its leaders, who would, so it was argued, “step up” to the attraction of joining the EU.

In the turning point year of 2006, Constitutional Reform collapsed and “ownership” prevailed – and Bosnia’s slide toward stagnation has proceeded uninterrupted since. The reforms arduously agreed to– mostly by consensus, not by imposition of the High Representative – have steadily unraveled, principally under determined assault by the RS Prime Minister, Milorad Dodik.

The situation has deteriorated to the point where the provocative word “secession”, a causus belli,has been aired, a reminder of how far Bosnia’s situation has descended.

The default option – “mudding through” – might be acceptable except that Bosnia is not, in fact, moving slowly “through” a crisis period; it is stuck, perhaps permanently, in an inefficient, unacceptable stasis.

Not only is Bosnia failing to meet specific EU requirements, its overall democratic benchmarks are slipping.

Parents can move freely about the country, but educate their children in segregated schools. The economy remains in parlous condition, and faces new challenges and barriers when Croatia joins the EU later this year.  Islamist influence among Bosniaks, traditionally exaggerated by Croats and Serbs, is, in fact, a concern.

The good news is that Bosnia can move forward  — provided that Brussels, principally, recognizes that it can no longer rely on the presumed attraction of EU membership as the mainstay of its policy.

Brussels must  jettison the blithe assumption that EU accession is sufficient for Bosnia and embrace bold new approach: join with Washington  in a full-bore effort to revive Constitutional Reform.

Learning carefully from the lessons of the near-success of the reform talks in 2005-6, it is still not too late to reengage the parties, principally the Serbs , in a serious process to remove atavistic concepts and introduce incentives for entity cooperation with state institutions, and for reaching consensus within those institutions. This paper explains why this approach is essential and sets out the parameters for its success.

The EU, winner of the past year’s Nobel Peace Prize, still has a lot to answer for in Bosnia, a country left fractured  in large part due to deep European divisions.

Now is the time for Brussels to finally craft a policy for Bosnia that addresses its core problem – an outdated and outmoded Constitution – instead of relying on the conceit that the EU membership process is the cure-all.

The  EU’s Surprising, Continuing Allure for the Balkans

Groucho Marx famously declared, “I wouldn’t join any club that would have me as a member.”  Europe’s financial mess flips Groucho’s logic on its head; why would the European Union (EU) admit any country that would want to join a club in such abject disarray?

With the United Kingdom contemplating leaving the EU, with Greece’s ability to remain within the Eurozone still a question mark, and with unemployment and austerity the rage, is it rational to even aspire to EU membership anymore? Rational or not, the queue of countries on the EU’s periphery that want to become members has not shortened, despite Europe’s economic, political and institutional woes.

Every non-member country around the Balkans, except for Croatia and Turkey, has governments that are still actively seeking to advance their EU membership prospects.  (Croatia has already qualified for membership; having become an economic power its own right, Turkey is now largely indifferent to joining the EU.)

According to Balkan diplomats, the continuing allure of the crisis-addled EU is explained by the enduring image of prosperity and relative normalcy, exemplified by rich northern countries like Germany.

Though Euro skepticism is on the rise among Balkan publics, a critical mass still seems willing to believe the EU is a vehicle for upward mobility to a German-style standard of living rather than a prescription for Greek-style chaos.

This surprising, continuing magnetic attraction of the EU (and its close counterpart, NATO), is quite significant.  The entire Western strategy for stabilizing the still polarized and weak Balkans countries is Euro-Atlantic integration.

Kosovo and Bosnia, the two countries still struggling from the legacy of war, continue to rely on outside (NATO and EU, respectively) stabilization forces and international civilian missions.

However, the international approach towards both countries has graduated from coercive supervision to persuasion – based largely on the presumed aspirations of both to join the EU and NATO.  The underlying message of the international community is, ‘Well, if you want to join our clubs, then you better institute our reforms.’

Unfortunately, neither Kosovo nor Bosnia has any near-term prospect of joining the EU or even advancing markedly on the path towards membership.  Because its 2008 declaration of independence is disputed – not just by Serbia and Russia but five of 27 EU members, Kosovo cannot even have a formalized contractual relationship with the EU.

Its young, growing population desperately wants to travel in Europe without a visa, but Brussels is willing to give Pristina only a meager framework for dialogue that might one day lead to consideration of visa free travel.

Yet despite its disadvantaged situation towards the EU, Kosovo’s Prime Minister has recently embarked upon a controversial and politically risky ‘dialogue’ with his Serbian counterpart, under EU auspices – solely because of the belief that cooperation might advance Pristina’s relationship with Brussels.  (Belgrade, likewise, accepts the political risk of participating in the political dialogue only to advance its own EU prospects.)

In Bosnia’s case, the reverse is true: Sarajevo already has full EU and UN recognition, its citizens enjoy visa free travel to Europe and it has even initialed a formalized compact with Europe – a ‘Stabilization and Association Agreement.’

Yet, unlike Kosovo and Serbia, Bosnia’s leaders seem utterly disinterested in making any concerted steps towards conciliation in the hopes of advancing their relationship with the EU.

Instead, the country’s leaders and its voters, equally, continue to look at politics through the ethnic prism of the war; politics is simply war by other means, with politicians routinely asserting ethnic rights while Bosnia’s EU prospects remain at a standstill.

The overlapping Dayton institutional framework provides the country’s leaders with control over patronage positions that keeps voters intimidated, ritualistically returning ethnic-oriented parties to power while stifling reform.

In sum , the EU magnet that has miraculously managed to hold its appeal to an entire region is of negligible interest to Bosnia.  The question is why this is so?  Why do Bosnians, alone in the Balkans, seem so preoccupied with their war-era differences that they would rather spite one another than advance down the avenue that holds the best chance of improving their lives?

The Origins of the Bosnia Outlier

While narratives still clash over the immediate causes of its bitter, three-and-a-half year war, and prescriptions abound for solving Bosnia’s continuing malaise, the crux of the problem is not hard to grasp.

Put simply, the Dayton Agreement ended the fighting, but has left the dynamics of war in place.  To bring the Serbs around to the peace deal signed in November, 1995, they were offered an ”entity” – the Republika Srpska (RS) – a substantial, compact territory with quasi-state powers which brought nearly all the Serb population in Bosnia into contiguity with the motherland, Serbia.

This ethno-territorial construct meant that the population (the Serbs) which had violently rebelled against central authority in Sarajevo, could remain oriented away from Bosnia and instead towards Serbia, minimizing its interaction with the Croat-Bosniak ”Federation.”

That separation might have left Bosnia with simply a cold peace, but Dayton also provided mechanisms for rebuilding the country based on a nominally unified state with limited authority over the two entities to be exercised from Sarajevo.

The fact that the Bosniaks had been brutally expelled from the RS during the war, the victims of genocide recognized by the International Court of Justice, meant that complete abdication of central state authority in favor of the entities would always be problematic.

But to exercise – or expand – central authority over the RS would immediately antagonize the Serbs, provoking opposition to perceived encroachment and incipient ”Muslim domination”, the ostensible Serb reason for fighting the war in the first place.

In other words, Dayton left Bosnia saddled with a bitter, zero-sum relationship between the RS entity and the central state in Sarajevo.  Any step that would increase the strength of Bosnia’s central institutions – even if necessary to meet EU negotiating requirements or to streamline Dayton’s unwieldy and costly governing apparatus – would necessarily diminish the power of the RS, and therefore incur resistance.

The Croat-Bosniak Federation remains an unhappy, dysfunctional marriage but it is not the main impediment to a functional state.  The Croats of Herzegovina, in the main, may harbor the same secessionist dream as the Serbs, but they are in far weaker position either to advance towards that goal, or undermine state authority as Banja Luka has done.

Couple this central fact with an electoral system that provides no incentive for parties or candidates to reach across the ethnic divide and you have a recipe for what Bosnia has remained since the peace agreement: utterly polarized.  Successive elections have changed nothing in terms of the country’s divided politics.

The electorate has returned nationalist parties to power in almost every ballot, largely ignoring the sporadic attempts of moderate initiatives to spark a citizens’ movement.  In the most recent election in October 2010, even the nominally non-ethnic Social Democratic Party, threw in its lot with nationalists.

Its leader, Zlatko Lagumdžija, an erstwhile defender of Bosnia as a multiethnic state, concluded an agreement with Serb leader Milorad Dodik  which if passed by parliament, would further weaken the state – thereby strengthening the entities over which the winning political parties have direct control.

This ‘corrupt bargain’ would simultaneously undo or water down some of the key reforms imposed by the Office of the High Representative, (OHR,) since Dayton.  This cynical agreement is further proof, if any were needed, of Bosnia’s democratic decline.

Bosnia’s politics reflects the country’s demographic distribution.  Virtually all the population, even in the Croat-Bosniak Federation lives in mono-ethnic pockets, with incidental communication with members of other ethnic groups.

There is full freedom of movement, but the vast majority of routine, daily encounters remain inside the safety and comfort of one’s own community.  The hope that a new generation of youth, untouched by the scourge of war and bitter prejudice, would ease Bosnia’s divisions has never borne fruit.

To the contrary, today’s Bosnian youth are the products of a wholly polarized society and a wholly segregated school system and lack the shared memory of a multiethnic Yugoslavia, which featured a remarkably high degree of ethnic inter-marriage in Bosnia.

In short, Bosnians are trapped in a zero-sum relationship that perpetuates the polarization of the war years.  It is naïve to think that ordinary citizens or politicians would put away communal differences in the hope of advancing the country’s distant prospects to become an EU member, when in virtually every election the voters, responding rationally to the archaic electoral and patronage system, have endorsed nationalist parties.  As one former international official put it, Bosnia is a “prisoner of Dayton.”

Bosnia at the Cross-Roads: Ownership or Constitutional Reform?

For its first post-war decade from 1995 through 2005, Bosnia ”functioned” only through the efforts of the international community, principally the OHR.  Conventional wisdom has it that the High Representative’s activism, which reached its zenith under Paddy Ashdown and  his deputy, Don Hays, was purely a function of OHR’s plenipotentiary ‘Bonn Powers’.

In fact, Ashdown and Hays drove the parties to agreement largely without resorting to coercion.    Walking purposefully while carrying a big stick, OHR achieved several vital advances towards making Bosnia a functioning state: implementing economic building blocks such as a national VAT; setting up a rudimentary business registration system re-launching the rail system, implementing customs reform, establishing a transparent private banking system and an improved energy grid, galvanizing property returns, as well instituting key reforms to the state court and security apparatus.

Believing that Bosnia’s state building process was self-sustaining, Ashdown and others saw Bosnia at the cross roads, as the British leader departed at the end of 2005.  Two distinct approaches to dealing with the Bosnia’s remaining challenges emerged:

–    Constitutional Reform.  This approach rested on the notion that Bosnia’s problems lay foremost in the flawed Dayton Constitutional structure, in particular its redundant and counterproductive ethnic protections (so called “vital national interests”),  not in its feuding politicians.  Unless there could be some agreed changes to the Constitutional structure that would attenuate the ability of the Serbs to frustrate the workings of the central state, Bosnia would never become functional no matter how many successive elections it held, and no matter how the international community tried to entice Bosnia’s leaders to work towards EU membership.

–    Ownership and the EU magnet.  This school argued that the cause of Bosnia’s problems was not the legacy of war and a flawed peace agreement, but rather the OHR itself.  Instead of helping Bosnians build a state, this school argued that Ashdown had usurped the rightful role of Bosnia’s leaders, rendering them colonial subjects.  Bosnia could easily move on to the path to normalcy if the OHR’s mandate were ended and its leaders given ”ownership” of the state and allowed to work together to accomplish their shared goal of joining the EU.  With its avowedly superior state- building process, it was believed that the EU, not the OHR, should become the main partner for Bosnia.

The choice between the two approaches was settled in the spring of 2006.  A carefully nurtured constitutional reform process had succeeded in getting Croats, Bosniaks, and even the Serbs, to the threshold of a ground-breaking agreement which promised to strengthen the powers of the State Parliament and Council of Ministers at the expense of the Tripartite Presidency and curtail the threat of legislative obstruction based on ethnic “vital national interest.”  Alas, when the deal was put before Bosnia’s parliament for ratification, it failed by two votes.  As constitutional reform faltered, ownership seized the day.  A new High Representative succeeded Ashdown, vowing to relinquish activism in favor of allowing Bosnia’s leaders to ‘step up’ – without any threat of interference or punishment from the self-emasculated OHR.

Bosnia’s downward  slide has continued unabated since then. Contrary to predictions of the ownership school, Bosnia’s leaders did not ”step up” once OHR  embraced passivity; instead, the leader of the RS, Milorad Dodik, seized on the promise of impunity from OHR to roll back vital state-building initiatives put into place under Ashdown.

As the Bosnia project unraveled, the promise of advancing the country’s EU prospects also went by the wayside.  In 2008, the country initialed a conditional Stabilization and Association Agreement, a hugely important milestone that normally readies a country to become a formal EU candidate.

In Bosnia’s case, the SAA has meant virtually nothing as full entry into force depends on Bosnia’s adoption of a State Aid Law and implementing the ruling of the European Court of Human Rights in the Sejdic-Finci case, as stipulated in the EU Foreign Affairs Council Conclusions on March 21 2011.

The court had instructed Bosnia to amend its constitution to allow ethnic minorities to join the three main “constituent” communities (Bosniaks, Serbs and Croats) as candidates for top public posts in the State Presidency and parliament.

Indeed, EU negotiators have long been frustrated by the fact that Sarajevo’s dwindling competencies (following the unraveling that ensued after the OHR’s self-emasculation) has left Bosnia bereft of the central institutions necessary to negotiate and eventually carry out required reforms.

At this point, Bosnia remains the region’s laggard.  With a few lonely exceptions, no reform-minded politicians have appeared on the horizons.  The economy is throttled by excessive regulation and duplicative and wasteful levels of government.

Young people who can emigrate do so.  And the core ethnic polarization, which was part and parcel of the war, is largely unresolved.  The RS leadership and population, amidst occasional talk of secession, seem ever more committed to effectively reducing the state to a mere tool of the entities and their still largely ethnic-based political parties.

The success of the RS political leaders in driving this agenda has led some Bosniak leaders to accommodate to this reality in ways that only further the decline of Bosnia as a functioning democratic state.

The only thing that Bosnia lacks – and that it has thankfully avoided so far – is inter-ethnic violence.

In the meantime the slow meat grinder that is EU integration policy towards Bosnia has fallen far short  of overcoming what its own October 2102 report admits: “little progress [has been] made in improving the functionality and efficiency of all levels of government, which continued to be affected by fragmented uncoordinated policy-making.”

Why Did Constitutional Reform Nearly Work in 2006 While Seeming Impossible Today?

There have been at least three attempts at reviving constitutional reform negotiations since 2006 that have only served to widen further the gulf between the RS and the Federation.

Indeed, in 2009 Washington failed in a high-level attempt to get the parties to consider a package of Constitutional reforms known as the ‘Butmir Process. In May, 2011, following a spate of highly provocative rhetoric, the RS nearly went forward with a referendum that called into question the legitimacy of laws on state courts and prosecutors.

The referendum was seen as a thinly veiled threat to move the RS down the road towards formal secession, especially as it echoed a notorious plebiscite held by Serbs on the eve of the war.

Dodik backed off the referendum bid after emergency intervention by the EU, widely seen as appeasing the RS leader rather than upbraiding him for irresponsible and destabilizing actions.

With the situation in Bosnia so dismal, and with the US and Europe consumed with so many higher priorities, the idea of reviving the constitutional reform process may appear futile. And yet, the only alternative to constitutional reform is to condemn Bosnia towards endless drift (or worse, as some predict) in the dwindling hope that a new generation of leaders will emerge who are capable of putting ethnic differences aside while jumping on the EU bandwagon.

Before  discarding as ‘unrealistic’ the only option that  tackles the systemic obstacles to progress, it is worth examining how Bosnia’s leaders nearly came to terms over far-reaching political reforms in 2006, to see what was fundamentally different then, what remains the same, and what can be salvaged from that experience.

What were the key ingredients that contributed to the near-deal?  Why did major parliamentary parties, including the Serbs, even begin to engage in constitutional reform negotiations beginning in 2005?

Most significantly, the constituent people with the least interest in constitutional reform – the Serbs – had by 2005 grudgingly conceded that the Bosnian state with a limited central government in Sarajevo, was a fact, and that their participation in it was in their interest.

They freely admitted that this had not always been the case; however, the relentless vigor and energy of OHR under Ashdown and Hays, which had resulted in concrete development of state institutions, helped changed their perspective.

Furthermore, they had come to  recognize advantages to enacting a new compact under Dayton that would streamline and strengthen some aspects of the state in exchange for achieving the Serb goal of full, unequivocal acceptance by the US and EU (and by extension, by their Croat and Bosniak compatriots) of the existence and prerogatives of the RS entity.

Each side had its own motivations for engaging in constitutional reform, but all acknowledged that there were too many blockages in the state level government for it ever to become sufficiently functional not only for domestic purposes but in order to meet any future Euro-Atlantic obligations.

In sum, there was growing political consensus that a more functional state was essential, that advancing toward that goal was compatible with respective ethnic interests, and, simultaneously,  a consensus emerged on how it should be achieved.

It is also true that in 2005 the international community in Sarajevo was more unified and empowered than it is now.  The double hatting of the High Representative as European Union Special Representative, EUSR, despite differences in the respective missions of the OHR and EU, remained a considerable bulwark against obstruction to the Dayton peace implementation process by political leaders.

The HR/EUSR, Paddy Ashdown, also worked hard to get and keep the ears of Brussels, major European capitals, and of Washington, and he was not afraid to draw on that support or  deploy, when necessary, the s executive / plenipotentiary (‘Bonn’) powers entrusted to him as HR.  Today, the OHR and EUSR are separated and both are substantially weaker as a consequence.

Although one of the intentions of the split-up between the EUSR and OHR was to encourage the Bosnian authorities to take greater responsibility for governing the country, it did little more than embolden the Bosnian Serb leadership to pursue their agenda of greater autonomy — with the support of Russia — at the expense of the state government with a view to making the secession of the RS inevitable in the future.

The 2005 constitutional reform negotiations were also pursued in a manner that gave the Bosnian parties a clear sense of ownership. In contrast to the top-down EU Police Reform process, the parties determined the constitutional issues they wished to address, oversaw the actual negotiations, and were free to accept or reject whatever elements they wished.

They also agreed that the American NGO negotiation team would chiefly assist them in mediating their discussions, offering legal and political guidance of different options for addressing the constitutional issues under negotiation, and producing draft texts until consensus was achieved on all issues.

Over time, the locally owned process nourished a sense of trust and confidence among the political parties’ Working Group, a sentiment largely lacking in subsequent constitutional reform interventions involving the international community. By the fall all sides spoke optimistically about the next stage of the negotiations should the current round achieve success.

Working Group participants also admitted that some of their long-standing views on issues such as the “vital national interests” of the three constituent peoples and the rights to representation of “others” were in need of revision.

There was likewise a growing awareness that if the constitutional package was approved by Parliament, it would have a wider positive impact on the fulfillment of some of the Dayton annexes, and would advance Bosnia’s EU prospects.

Why did this form of ownership work and the “cold turkey” ownership approach of Ashdown’s successor, Christian Schwarz-Schilling, fail?  As always, the difference was in the Serb attitude.

As noted above, at the launch of constitutional reform talks, the Serbs had bought in to the existence of a viable central state in large part due to the international-led intervention personified by Ashdown. Having accepted the seemingly inevitable, it was natural for the Serbs to voluntarily join in a process that was, refreshingly, led by them and the other parties and not outsiders.

In the event, a profoundly divisive parliamentary and public debate in the spring of 2006, in which Serb parties made it clear that the April package represented an absolute ceiling on state reform, helped doom the reforms.

The (Bosniak) Party for Bosnia and Herzegovina, (SBiH), party lead by Haris Silajdžić worked successfully, along with a splintering Croat party, to  torpedo the April Package.

An equally bitter election campaign ensued, with a resurgence of virulent nationalist rhetoric on all sides that poisoned the atmosphere, influenced the voting, and made the restart of the negotiations virtually impossible.

Any prospect of a successful re-launching of constitutional reform after the collapsed of the April Package was further dimmed by the public decision by Schwarz-Schilling not to use Bonn Powers to intervene in Bosnian politics. Bosnia’s downward spiral, under a weakened and progressively weaker international authority, had begun.

The Lost International Consensus Over Bosnia

The chances of renewing negotiations were further undermined by growing pressure within the international community, particularly among some EU member states and Russia, to reduce the footprint of and ultimately close the OHR, despite the negative trends.

Declining EU support for the OHR and for constitutional reform was visible in Brussels’ refusal to support HR/EUSR Miroslav Lajcak’s fall 2007 attempt to streamline voting procedures in the Council of Ministers, Bosnia’s governing cabinet.

An emboldened Dodik, the RS Prime Minister, sensed correctly that Lajcak had no backing for his Ashdown-like effort to impose his authority.  When Brussels indeed declined to support Lajcak, the emasculation of OHR was complete.

Only the personal engagement of some country ambassadors, notably the US Ambassador, would provide any check on Dodik’s or other RS challenges to state authority.  Otherwise, the international approach to recalcitrant parties begun under Lajcak and continuing to the present has been all carrots and no sticks.

In Brussels and some capitals meanwhile, no tears were shed over the demise of constitutional reform, as this was largely seen as a US-led initiative for the purpose of Dayton state-building that only distracted Bosnia from the EU’s priority: Bosnia’s theoretical advance towards membership.

Despite the statements of the Council of Europe’s Venice Commission challenging the country’s constitutional order, and the decision of the European Court of Human Rights calling into question Bosnia’s ethnic preferences, constitutional reform has never been a priority for EU missions in Sarajevo.

Indeed, in Brussels Bosnia is seen less as a vital responsibility inherited from the historic failures of the 1990s than an abject nuisance.  Diplomats have tacitly admitted that the haste to close OHR is linked to the over-arching desire to withdraw Europe’s remaining EUFOR troops from Bosnia, further ceding ‘ownership’ to the parties.

This same lack of unity contributed to the failure of the Butmir constitutional reform process in November 2009.  In hopes of moving Bosnia beyond Dayton to Brussels, the EU grudgingly agreed to a US push to get Bosnian political leaders to agree to an upgraded April Package document in exchange for the decoupling of OHR and EUSR in Bosnia.

But Bosnian politicians refused to agree to a pre-set, largely non-negotiable constitutional package, surprising both the US and EU.  Ultimately, the problem of Butmir was that it exposed the subtle but growing policy divisions between Brussels (whose over-arching goal was shuttering OHR) and Washington (which sought to render Bosnia functional.)

As ever, trans-Atlantic division only empowered the political leaders of Bosnia to resist successfully this new, much weaker international effort at constitutional reform.

All momentum on constitutional reform was thus effectively terminated.  From then on, especially after the breakup of the OHR/EUSR condominium in September 2011, the EU has quietly turned its back on constitutional reform, preferring instead to concentrate on the so-called EU roadmap.

This was noticeably evident in the joint press conference of US Secretary of State Hilary Clinton and EU foreign policy chief, Catherine Ashton in Sarajevo on October 30, 2012. Whereas State Clinton reaffirmed the importance of constitutional reform, Euro-Atlantic integration the EU Roadmap and the importance of political leadership in Bosnia, Ashton made no specific reference to Constitutional Reform.  Clinton, in contrast, was unequivocal on its importance.

“Are there some structural issues that need to be addressed through constitutional reform? Yes, there are. Dayton was intended to end the war and begin the process of state building. We want to see the necessary constitutional changes that would give you greater flexibility and functionality, decided upon by the leaders and the people of the country.”

The dichotomy between these two trans-Atlantic approaches – one a belief that the EU magnet alone will entice Bosnia’s leaders to cooperate and the other a conviction that Bosnia will never function without substantial reform of the country’s entity-state roles and relationships – continues despite the abject inability of the EU carrot to wring compromise out of Bosnia’s leaders.

The EU insists that it can supplant fully the OHR’s role, yet it shows no inclination to safeguard hard-won reforms that safeguard democratic principles like media freedom.

In December 2012, for example,  the BiH Parliamentary Assembly adopted legislation changing the way that members of the board of the Communications Regulatory Agency (akin to the FCC) are chosen.

The legislation brings board members directly under the parliament and therefore the control of political parties. This step severely compromised virtually all media reforms that had been overseen by the OHR.

To make matters worse, the EU had initially insisted that it should lead on this matter,  insisting that the OHR’s expertise was redundant;  subsequently, the EU stated that it could not do anything about the media legislation because it was not directly related to the EU Acquis.

Given the role played by the media in the former Yugoslavia in fanning the flames of ethnic hatred, this dubious step is one likely to be lamented in the years ahead.

Why Not Just Let Bosnia Muddle Through?

Bosnia’s lack of progress is no secret.  The EU’s 2012 Progress Report on Bosnia recites a litany of failure:

“Overall, there has been little progress in compliance with the ECtHR judgement in the Sejdic-Finci case and in establishing functional and sustainable institutions. Establishing an effective coordination mechanism between various levels of government for the transposition, implementation and enforcement of EU laws so that the country can speak with one voice on EU matters, remains an issue to be addressed…” Little progress was made…in improving the functionality and efficiency of all levels of government, which continued to be affected by fragmented, uncoordinated policy-making. The delays in the formation of the Council of Ministers and political disagreements between parties in the governing coalition delayed progress on the EU agenda… “A shared vision by the political representatives on the overall direction and future of the country and its institutional set up remains to be agreed as a matter of priority.”

Ordinarily, such a dismal assessment – which is as much an indictment of the EU’s approach as it is of the failure of Bosnia’s leaders — would force a complete re-thinking of policy.

Unfortunately, without the immediate prospect of inter-ethnic violence (or unless goaded by Washington, which is consumed with other priorities), complacency rules in Brussels.  There are at least three reasons why simply letting Bosnia “muddle through” on an illusory path to Euro-Atlantic integration is a mistake:

First, Bosnia is not muddling “through” some temporary crisis period; it is stuck in zero-sum polarization with virtually no improvement in key democratic indicators such as: civil society engagement, non-segregated education, inter-ethnic relations and tolerance, media freedom, or wider respect for human rights.

Indeed, some believe that in critical areas like the role of women in society, Bosnia is trending backwards.

Second, delay on fundamental political and constitutional reforms impedes Bosnia’s entry into the EU, NATO and other international organizations. This is no small point for it needs to be kept in mind that a Bosnia moving inexorably toward EU and NATO memberships strengthens the sovereignty and integrity of the country and reduces the prospect of secession.

Indeed, were Bosnia to achieve these and other memberships, any attempt at secession would likely be very costly to the RS as Sarajevo would likely be recognized as the successor state thereby requiring the RS to start the process anew.

Hence, once Bosnia draws near EU membership then the incentives reverse, and Banja Luka would have to think twice before pursuing secession when Sarajevo is on the doorstep of becoming a member.

Also, Bosnia’s economy is, like much of Europe, in parlous condition – and it faces potentially severe shocks.   Croatia’s entry into the EU, expected later this year, will, overnight, cost many Bosnian agricultural exporters their number one market.

Most meat and milk producers will not be able to meet strict EU regulations that will become the law for the Croatian market.  Until they adjust, Bosnia’s weak economy will take another hit.

This will only further aggravate  the country’s ability to repay its debt to the IMF, a proverbial “day of reckoning”  which many fear will either force a default or a hasty, corrupt privatization deal in order to raise the cash.

Steadily degraded state of governance in Bosnia has increased levels of political and criminal corruption, raising concerns that the country could become a rogue state on the border of the EU.

Third, while Croat and Serb nationalists have exploited the subject, the truth is that there are some disturbing Islamist influences in Bosniak society.  US and European support for Bosnia has, unfortunately, never earned much credit in the wider Muslim world.

However, the opposite impact is still quite possible; further degradation or further centrifugal tendencies in the RS can provoke a “Muslim abandonment narrative” that could indeed have wider resonance and repercussions in Europe and beyond.

This would especially be the case in the event of inter-ethnic violence, the prospects for which should neither be exaggerated nor discarded.  If the post-poned national census is conducted later this year, the prospects for inter-ethnic antagonism  could grow.

Finally, there is one other reason that the EU, in particular, should pay closer attention to Bosnia: its historic debt to the country.  The specter of Srebrenica continues to haunt the Netherlands.  However, it was the EU as a whole that failed spectacularly to rise to the challenge of former Yugoslavia’s bloodiest battlefield.

Bosnia, whose cold peace is still a symbol of American prowess and European fecklessness, remains the strongest reason to question the Nobel Peace Prize given to the EU last year.

Toward a New Compact: Reviving Constitutional Reform

The heart of the problem facing Bosnia is clear: there is simply no political agreement or shared vision on the future of Bosnia and its governing institutions.  It is not just a policy priority to resolve this political and constitutional gap: it is a necessity.

Otherwise, all attempts to pursue EU (and NATO) integration process will founder. The way forward is equally clear: streamline Bosnia’s central government capable  so that it is capable of meeting both the EU’s complex accession requirements and the needs of its citizens, businesses and the wider economy.

As far back as March 2005, a report by the European Commission for Democracy Through Law, the “Venice Commission”, stated as much with similar clarity: “a stabilization and association agreement…will require institutions at the state level far more effective than those [that] exist [today].

The current, laudable US Embassy-led effort to reform the Federation falls short of this objective and is unlikely to make state level constitutional reform substantially  feasible in the near term.

And while there is value in the recently launched “High Level Dialogue on the Accession Process”, HLDAP, between the EU and representatives of the authorities and political parties of Bosnia, it does not directly attack the core problem: Bosnia’s dysfunctional constitutional order which the EU acknowledges is “complex” and “inefficient” and “subject to different interpretations.”

The challenge is how to achieve the goal of reforming the country’s Constitution when Bosnia’s politics are now so debased.  In an encouraging sign, the leaders of Bosnia’s six major parties met in Mostar on 20 November, 2012,  17 years to the day after the initialing of the Dayton Agreement—and agreed nominally to renew their commitment to constitutional reform and the EU Roadmap.

Their stated priority was to change the constitution to comply with the 2009 ‘Sejdic – Finci ruling’ by the European Court for Human Rights.  However, as with past attempts by the political leaders to launch constitutional reform this new initiative shows no signs of going anywhere.

One lesson of the near-success of Constitutional reform in 2005-6 is that there can only be progress if there is a criticalbuy-in from the Serbs – the constituent people with the least interest in development of the Bosnian state.

And the ne plus ultra for Serbs is the inviolability of the entity, RS.  The converse is also true; for Bosniaks (and some Croats), the ne plus ultra is the inviolability of the state – the supreme authority of its institutions in their limited spheres of competence, and the permanence of the country’s borders.

In fact, along with an enormous disparity in weapons, it was these two core, conflicting aspirations – autonomy of the Serb polity versus integrity of the state led by the Bosniak polity – that led Bosnia into war.

Bosnia’s advancement depends on finally ending the war – releasing the country from the shackles of a flawed peace agreement by entering into a new compact:
–    The Bosniaks and Croats, backed by the US and EU, renounce any attempt to undermine the existence or integrity of the entities, as part of the effort to rationalize state authority or advance the country’s efforts to join the EU.
–    The Serbs renounce any attempt to secede from Bosnia or to undermine the existence, functionality or integrity of state institutions.

EU and US support for this new compact should be supported by the following steps:

1)    The launching of a new constitutional reform dialogue by mid-2013, well before the next election cycle in 2014,that engages municipalities and the public, not just party leaders, on constitutional reform.  The dialogue should begin by reviving areas of past consensus. The dialogue should be distinct from the HLDAP.

2)    An EU decision to downgrade or suspend all EU integration initiatives should the Bosnian leadership refuse to engage in this dialogue.  Should this still not result in progress, the express threat to ask the IMF not to roll over loans due in 2014 should be communicated publicly.

3)    Link success on constitutional reform to the closure of the OHR.

4)    Serbia, as a signatory to the Dayton Agreement, must directly engage in pushing the RS to publicly commit to abandoning its secession plans. It cannot restrict its focus on Kosovo. Croatia, as another Dayton signatory, has done its part in working with the Bosnian Croats, Belgrade must do the same.

To conclude, the public appeal of EU membership remains strong in Bosnia, but for that aspiration to become meaningful, the country’s political leaders and the EU must jettison the illusion that the Dayton constitutional disorder is compatible with the accession process. It is a dangerous conceit in Brussels to see Bosnia’s political and ethnic divisions merely a Balkan version of Belgium.

Bosnia’s problems are vastly different.  The dynamics of war-era polarization still rage, captive to venal leadership and a defunct Constitutional order. The way to finally end Bosnia’s war is through a locally owned, US-backed, and EU-facilitated negotiated constitutional consensus.