Journal of Muslim Minority Affairs, Vol. 22, No. 1, 2002

Bosnia–Herzegovina: Developments towards aMore Integrated State?

FLORIAN BIEBER

Introduction

When riots erupted over the reconstruction of the Ferhadija Mosque in Banja Luka inMay 2001 and at the same time the dominant Croat party, the Croatian DemocraticCommunity (HDZ), continued its policy of boycotting Bosnian institutions, it seemedas if the fragile interethnic peace, established by the Dayton Peace Accord (DPA) ofNovember 1995, might disintegrate. In reality, these crises merely re� ect the continu-ing dominance of ethnicity in post-war Bosnia. These events can also be viewed as aresponse of nationalist political parties to a recent trend away from ethnic separationand suspicion to a more integrated Bosnia. A key decision by the Constitutional Courtand the establishment of new governments at the level of entities and joint institutionswithout nationalist parties for the � rst time since 1990 seem to point towards a moremultinational Bosnia.

Throughout the past decade, Bosnia has experienced broad range of interethnicrelations, from peace and co-existence to war and separation. After the brief unsuccess-ful attempt of power-sharing from 1990/1991, the reminder of the � rst half of thedecade was shaped by attempts to dismantle power-sharing structures and destroyco-existence through mass murder, expulsions and separation. The years following theDayton Peace Accords (DPA) have brought peace, but only limited success in funda-mentally improving interethnic relations and establishing a functioning system of jointdecision-making between the three predominant national groups of the country.

The current institutional structure of Bosnia draws from a variety of differentinstitutions and systems of power-sharing. It includes elements from pre-war institu-tions (such as the collective Presidency), incorporates layers of governance thatemerged during the war (such as the two entities), and borrows from other cases andtheoretical models of power-sharing. As a consequence, the argument can be made thatthe system of power-sharing in Bosnia does not constitute any new type of arranginginterethnic relations.

This paper will argue, however, that the novelty of post-Dayton Bosnia lies in thecomplexity of the existing institutional structure regulating interethnic relations. Thecomplexity is conditioned both by the multiple layers of governance instituted by theDayton Peace Accords and also the additional network of international organizationsdirectly engaged—be it in an ad hoc or an institutionalized form—in the administrationand decision-making process in Bosnia.

The Structure of Bosnian Power-sharing

Consideration of the institutional infrastructure in Bosnia is frequently limited to theDayton Peace Accords alone. This de� nition, however, would exclude other signi� cant

ISSN 1360-2004 print/ISSN 1469-9591 online/02/010205-14 Ó 2002 Institute of Muslim Minority AffairsDOI: 10.1080/13602000220124917

206 Florian Bieber

centers of power—and subsequently also of (potential) power-sharing. As the war inBosnia was based on a claim to self-determination by the dominant political represen-tatives of two of the three nations of Bosnia, the settlement is preoccupied with(re-)constructing a political center, with (limited) competences vested in it. Theconstitution of Bosnia and Herzegovina, annexed to the DPA, thus mostly governs thejoint institutions of the state. The constitution, just as most of the other annexes to theDPA, tries to combine three conceptions of statehood and peace-building.

First, it is based on the outcome of the war, re� ecting the unwillingness of theinternational community to signi� cantly alter the military and political balance with theuse of force.1 Consequently, the settlement had to make concessions on the basis ofmilitary might rather than legitimate demands of the representatives of the nationalcommunities.

Second, the DPA sought to establish a tri-national state that grants Bosniacs, Croatsand Serbs equal protection and ensures political representation and power on the basisof the groups’ numerical strength. While a tri-national state with signi� cant powersgranted to the national groups does � ow from the demands of the Serb and Croatleadership in the early phases of the war, this concept had to establish a political balancewhich did not equal the military balance during the war: i.e. the largest nation inBosnia, the Bosniacs, was the weakest party in (in fact victim of) the war had to receivestronger representation in the institutions than their actual military strength would havesuggested.

Third, the peace agreement did, although in a limited scope, recognize some civicfeatures of the state. The permeation of exclusive group representation through theinstitutional system is extensive. In its references to Bosnian citizens (as opposed to justthe three nations), and in its commitment to refugee return, there has been someattempt in the Dayton Peace Accords to reverse some of the consequences of the warand the ‘ethni� cation’ of all spheres of public life.

Balancing Competing Demands

The peace accords had sought to strike a balance between competing demands, suchas the demands of the secessionist movements among Croats and Serbs (i.e. therecognition of the Republika Srpska as a separate entity), demands of the all nationalistparties, including the Bosniac SDA, and, at the some time, to allow space for thedevelopment of new political elites who would demonstrate greater willingness than thewartime parties to work with each other and with the international community.

While there has been no formal change of the Dayton Agreement since its rati� cationin late 1995, the practice has developed and changed of the substance of power-sharingin Bosnia. Most signi� cantly, the role of the international actors, especially the HighRepresentative, has been enhanced in recent years. The Peace Implementation Councilgranted the High Representative the power to remove of� cials from of� ce and toimpose laws. This affected not only the decision-making process, but also the balanceof power between the different political actors in Bosnia, mostly in the form of opensupport for moderate political parties and a range of measures (e.g. dismissal ofof� cials, banning of parties) taken against nationalist parties.

The origins of the power-sharing arrangements in Bosnia place a burden on itssuccess. Despite the fact that it includes some elements that predate the peace accordsand that draw on established institutional mechanisms such as the presidency system,the current power-sharing in Bosnia is widely perceived as being ‘imported’ rather than

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a result of the will of the polity, or at least of the political representatives of nationalgroups.2 Past practices in power-sharing arrangements do suggest that mechanisms thatare perceived as ‘indigenous’ rather than externally imposed, have a higher likelihoodof success.3

The two predominant features of the current institutional set-up are (a) a consocia-tional arrangement at the level of the joint state institutions, mixed with (b) anasymmetric multinational federation.

Power-sharing at the Center

The executive body of Bosnia requires the participation of all three national groups.The institutional system attempts to ensure the representation of Bosniacs, Croats, andSerbs, as well as veto for all groups on questions of ‘vital interest’. While a number ofconsociational arrangements in multinational states (e.g. Switzerland, Lebanon) are atleast in part informal and not an aspect of the constitutional set-up, power-sharing inBosnia is prescribed by the Dayton constitution to the last detail.

The highest state organ—the Presidency, which combines representative functionswith the foreign policy of Bosnia—embodies equal representation and the veto powerfor each group. Not only is one Croat, Serb and Bosniac represented in the Presidency,but the members are also elected by the two entities separately. The Presidency is thusbased on territorial and national representation.4

The conditionality for of� ce holders in terms of national identity,5 alongside theirterritorial base, resulting in an electorate that is not congruent with this ethnic division,is institutionalized not only on the level of the Presidency, but also in other jointinstitutions (e.g. House of Peoples, Governing Board of the Central Bank).

This double-delimitation raises a number of questions. As the main cleavage cuttingacross Bosnia is doubtlessly ethnicity, as opposed to regional identity, the Presidencymembers are arguably elected to represent primarily their respective nation and onlysecondarily their entity. While the war created largely homogeneous entities, some levelof diversity remained both in the Federation and in the Republika Srpska (RS), whichwas enhanced by the small number of refugee returns.6 The electorate of the Presidencymembers is thus not inherently mono-ethnic. Theoreticians have argued over the utilityof other groups participating in the vote for representatives of the other group. Some,as Lijphart, have argued that in a power-sharing arrangement, the representative shouldrepresent their respective community and any dilution of this principle might underminetheir legitimacy and ability to negotiate with other groups’ representative on behalf oftheir group.7 Others have countered this argument with the observation that with theco-participation of other groups, the elected leaders might be more moderate thanrepresentatives who are selected on a purely mono-ethnic basis.8 The reality of thePresidency in Bosnia since 1995/1996 suggests that neither of the two interpretationsapply in this case: the Presidency members have been generally regarded as legitimateleaders of their respective nation, mostly because they did not moderate their platformto garner minority support. This can be attributed, in part, to the relatively low numberof peoples of other nationalities living in the two entities. Instead, the past electionsto the Presidency have de facto deprived a segment of the population from representa-tion in the Presidency.9 Serbs from the Federation and Bosniacs and Croats in theRepublika Srpska have thus had no representation of their own in the Presidency.Rather, they have had to rely on the—frequently inadequate—representation by mem-bers of their nation from the other entity. This not only raises questions about the

208 Florian Bieber

inclusiveness of democratic representation, but it also stands in con� ict with theprinciple of refugee return, which, if carried out, would transform both entities intomultinational territories again.

The rigidity of the institutions has been remarked upon by the Constitutional Courtin regard to the Federation. Its observations do, however, also apply to the level of jointinstitutions:

… there is at least one striking difference in the electoral mechanisms ofBelgium on the one hand, and the federation of BiH on the other, in particularas far as the right to stand as a candidate is concerned. The Belgian systemdoes not preclude per se the right to stand as a candidate solely on the groundof language. Every citizen can stand as a candidate, but has—upon hiselection—to decide whether he will take the oath in French or in Flemish. Itis therefore the subjective choice of the individual candidate whether to takethe oath in French or in Flemish and thereby to ‘represent’ a speci� c languagegroup, whereas provision of the Constitution of the Federation of BiH providefor a priori ethnically de� ned Bosniac and Croat delegates, caucus and vetopowers for them.10

Besides the rigidity of ethnicity in the Presidency, a number of problems can beidenti� ed with a presidential system as part of power-sharing in general.11 A presidentialsystem, even if exercised in the moderated form of a Presidency, personi� es ethnicitymore than a cabinet-based system, and renders the distribution of power more dif� cult.

The degree of institutionalization of power-sharing is not as strong in the jointgovernment, although formal regulatory mechanisms to ensure broad representationexist. The Council of Ministers is formed by up to two-thirds representation from theFederation and one-third from the Republika Srpska. In addition, every minister has adeputy from a different national group. As the Chair of the Council of Ministers mustbe nominated by the Presidency, and the House of Representatives must approvehim/her and his/her government, there are additional built-in mechanisms ensuring theinclusion of the different national groups in the government.12 Like the Presidency, thecompetences of the government are limited, re� ected in the small size of the govern-ment.

The overall emphasis of ethnic belonging in the executive and legislature of Bosniadoes ensure a permanent grand coalition of the three national groups. At the same time,the over-institutionalization provides little � exibility in the executive power-sharing.

Among a number of additional dif� culties associated with the particular institutionalset-up in Bosnia is the near total exclusion of ‘others’ or ‘citizens’, from the power-sharing arrangement. The constitution recognizes ‘citizens’ as a quasi-separate groupfrom the three national groups, while the institutional—just as the political andsocial—reality ignores the existence of other minorities, citizens of mixed marriages,and those not willing or able to identify with the national groups. This group—‘citi-zens’—whose strength is near to impossible to determine, is not guaranteed representa-tion.13 A legal scholar recently posed the rhetorical question: ‘Who defends the vitalinterests of the Citizens of Bosnia and Herzegovina?’14 Until early 2001, the answer tothis question would have to be ‘nobody’. The High Representative did, however,establish two constitutional commissions for both entities in January 2001, which arecharged with safeguarding the interests of the three constituent nations, and the‘others’.15 Both commissions contain four members from each of the four groups andthe majority of each group can object to a proposed regulation, law or decision of the

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entities, if it determines that to be against their group. The commission is charged withresolving the claim, and, if it cannot agree, refers it to the High Representative. Thecommission, a provisional institution, pending the incorporation of the ConstitutionalCourt decision on the constituent people in the entities (see above), provides forprotection of citizens who are not members of the three national groups.

Bosnia as a Multinational Federation

In Bosnia, power-sharing at the center accounts for only a small segment of the actualpower exercised by elected of� cials. The high degree of decentralization towards theentities has transformed the originally unitary state into a highly decentralized one. Theconstitution of Bosnia and the Dayton Peace Accords conspicuously avoid any formalascription of the nature of the state. In fact, the previous attribution ‘Republic’ wasdropped, resulting in the country’s of� cial name being only ‘Bosnia and Herzegovina’.The extent of power vested in the two entities would suggest that the country is at leasta federation. The term ‘federation’, however, is already reserved for the ‘Federation ofBosnia and Herzegovina’ that encompasses the predominantly Bosniac and Croat 51%of the country. Thus, what is Bosnia? The Constitutional Court has, for example,compared Bosnia with federal states, suggesting that Bosnia itself is a federation.16 Moststudies of federal systems distinguish between ‘federalizing states’ (e.g. Belgium) andfederations deriving from an agreement between different units (e.g. USA, Switzer-land). This distinction not only bears historical importance, but also determines theoriginal (and frequently still primary) level of authority.17 Bosnia constitutes a curiousmixture of both systems. On one hand, the current state possesses some elements ofcontinuity with the pre-war state and is the legal successor to the Republic of Bosniaand Herzegovina,18 suggesting a ‘federalizing state’. On the other hand, none of thepre-war institutions were incorporated in the new state, weakening the connection topre-war and wartime Bosnia.19

While the degree of decentralization suggests that Bosnia is at least a federation, it ismore dif� cult to determine whether Bosnia might be a confederation.20 Two factors inparticular would suggest that Bosnia is in fact a confederation. First, the fact that oneof its constituent units calls itself, and by its structure is, a federation, could be viewedas an indicator of the confederal nature of Bosnia. More importantly, the lack ofcompentences of the joint state in the sphere of defense21 and the existence of twoseparate armies of the entities seem to point to a confederal state. A confederationwould, however, suggest that the constituting units are in fact dominant and havesupremacy over the central authorities. The structure of Bosnia does neverthelessestablish the supremacy of the joint institutions over the entities.22 As a result, Bosniacould be considered a loose multinational federation.23 In addition to being a highlydecentralized federation, Bosnia is also an asymmetric federation from at least twopoints of view. First, the fact that the sub-units are constituted very differently: one isa loose federation consisting of ten cantons and two predominant nations, and thesecond a (formally) centralized republic of one dominant nation. Second, the existenceof a third unit, the district of BrcÏ ko, provides for asymmetry. BrcÏ ko, of� cially a thirdseparate unit (‘condominium’) since March 1999 has the same competences as the twoother entities, however, only in coordination with them. As the district formally belongsto both entities simultaneously, it also lacks individual representation in joint institu-tions.24 This asymmetry of Bosnia has meant that in reality, the types of governance inthe country vary greatly in terms of power-sharing, but also in other aspects. This poses

210 Florian Bieber

particular problems to Bosnia that do not apply to other federations, whether based onnational or territorial criteria.

In addition, some further questions arise with regard to multinational federations ingeneral. A number of factors seem to put into question the adequacy of a federal systemfor a multinational setting. The existence of territorialized national groups in the formof federal units frequently creates a fear of secession. In the regional context thedemand for a republican status, i.e. being a federal unit, by some Albanians in Kosovowithin Yugoslavia in the 1980s was widely perceived as a demand for gradual secessionfrom the state. Similarly the demands of some Albanian politicians in Macedonia forterritorial autonomy and/or federalization of Macedonia have caused such fears amongthe majority. This fear can be found equally in other interethnic disputes around theworld, especially when the demand for federalization is raised at times of high tensions.

Even if the possible danger of separation in Bosnia has been reduced by excludingany reference to self-determination of either the nations or the entities in the consti-tution, and politically by the international presence, the concept of a multinationalfederation does not fully address this fear.

Decentralized territorial units that are de� ned primarily in ethnic terms tend toaccelerate the homogenization of these units or, in the case of Bosnia, delay the‘re-mixing’ of the population. The territorialization of ethnic identity follows the(� awed) assumption that ‘good fences make good neighbors’.25 The resulting segre-gation and minimal contact between the nations does reduce the political andemotional investment of the nations constituting the state and preclude a reconstruc-tion of trust through interaction on an everyday basis. It furthermore reinforces thedivision of the state’s polity. Will Kymlicka has argued that multinational federationsencourage centripetal tendencies, which result in a weaker institutional reality thanintended in the constitution.26 As result of this and other de� ciencies, Kymlicka haschallenged the desirability of multinational federations: ‘For all these reasons, it seemslikely that multinational federalism will be plagued with instability, and may eventuallydevolve into a confederation or simply break up’.27

Problems of the Current System

Few would claim that Bosnia has been governed effectively since the 1995 DaytonPeace Accords. Not only has progress in some key areas of governance—such aseconomic reforms, effective institutions and reconstruction—been limited, but also thedegree of successful decision-making between representatives of the different nationalcommunities has been minimal. Thus the question is raised whether power-sharingactually did take place in the past � ve and half years.

This development, combined with the objective need for sustained internationalintervention in the political process, has lead a number of observers to conclude that thepower-sharing structure of Bosnia, as instituted in the DPA, is fundamentally � awed.28

In fact, the weaknesses often attributed to DPA are limited almost exclusively to theconstitution (Annex 4). Proponents of a ‘Dayton 2’ generally point to � aws in theconstitution, which could be addressed without a change to the overall peace plan.29

Furthermore, if one is to identify the weaknesses of the power-sharing system (or/andthe absence thereof), it emerges that—the � aws of the constitutional arrangement notwithstanding—most of the dif� culties in establishing successful governance in Bosniaare not associated with the power-sharing system embodied in the constitution, but

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rather have to do with institutions and mechanisms which either precede or havefollowed the Dayton Peace Accords.

Thus, an assessment of the power-sharing structure in Bosnia cannot be limited tothe institutional arrangement of the Dayton Peace Accords alone. Rather, one has toexamine two additional aspects: the functioning of the entities, and the role of theinternational community.

Dysfunctionality of the Entities

The entities constitute the level of primary political power in Bosnia. The constitutionof Bosnia explicitly grants them ‘all governmental functions and powers not expresslyassigned in … [the] constitution to the institutions of Bosnia and Herzegovina’.30 Thepower of the entities thus covers most aspects of governance with the exception of somelimited areas, such as foreign policy, customs, and monetary policy.31 In addition, thepower-sharing at the level of the joint institutions has meant in practice that the politicalcenter is frequently dominated by political representatives whose primary loyalty lieswith the entities, the national groups they represent, and—often most importantly—with the national(ist) political party they represent.

This power vested in the joint institutions, however, is in no way matched by thecompetences allocated to, and real political power exercised by, the entities. Despitetheir political weight in Bosnia, both the Federation of Bosnia–Herzegovina and theRepublika Srpska have been unable to exercise effective control over their respectiveterritories. Both the Federation and the Republika Srpska have been internally dividedfor most of the past � ve and a half years.

The Croatian Entity

In the Federation, the Croat dominated areas in Western Herzegovina controlled by theHDZ as result of the war were never effectively integrated into the structures of theFederation. The Croatian cantons and army units maintained separate institutionalstructures with each other and until the end of HDZ-rule in Croatia in January 2000,also with Croatia. The situation was the same during the period between the of� cialdisbanding of ‘Herceg-Bosna’ with the establishment of the Federation in 1994 and theestablishment of the Croat self-government in March 2001.

In 1997, the OSCE observed in an internal study that the area ‘in every aspect frommilitary and security matters to business ties, is part of Croatia’.32 Although the changeof government in Croatia eventually led to a cessation of funding of these separateinstitutions, formal and informal institutions remained separate from the Federation,mostly due to the continuing dominance of the HDZ in the Croat dominated areas ofthe Herzegovina.

While there was a visible decline in the institutions of ‘Herceg-Bosna’ in 2000, basedboth on the weakening of the HDZ and the more assertive role of the internationalimplementing agencies,33 non-federation Croat institutions remained in place.

After the HDZ, under the leadership of the then-Croat member of the BosnianPresidency,34 Ante Jelavic, declared a withdrawal from the joint Federation institutionsin March 2001, both international and domestic observers noted an obvious continuitybetween the newly formed Croat self-government and pre-existing structures.35 TheCroat self-government consequently marks in part the acknowledgment of pre-existingstructures rather than creation of new ones. The recent political crisis in the Federation

212 Florian Bieber

thus has only brought to light and exacerbated a pre-existing de� ciency of the Feder-ation.

The Serbian Entity

Unlike in the Federation, where the weaknesses are closely intertwined with itsdecentralization, the dysfunctionality of the Republika Srpska is caused by failedpolitical centralization and geographic disintegration. The aim of the Serbian wartimeleadership, as evidenced in the name Republika Srpska, was to establish a contiguousterritory that would form a joint state with Serbia/Yugoslavia in the future. Theestablishment of a centralized and uni� ed ‘republic’ had been one of the primarydemands at all peace conferences by the Serbian Democratic Party.36 The DaytonPeace Accords, however, only partly ful� lled this demand. The territory de� ned asRepublika Srpska consists of two territories, linked only by the city of BrcÏ ko in NorthernBosnia, which was governed by the Republika Srpska (RS) pending internationalarbitration. With the decision of the international arbiters in March 1999, the city andthe surrounding county has been transformed into a condominium, thus removing theonly link between the two separate parts of the RS. Not unlike the self-declaredCroatian autonomy in March 2001, the arbitration decision revealed a weakness of theentity rather than creating it. The arbitration, which occurred at the same time as theremoval from of� ce of the president of the RS, Nikola PoplasÏ en, and shortly before theNATO bombardment of Kosovo began, created considerable opposition on the side ofthe political elite of the RS.37 Nevertheless, for a number of years before the BrcÏ kodecision, the Republika Srpska had already been divided politically, and de factogeographically.

The split emerged in the course of the dispute between Biljana PlavsÏ ic and MomciloKrajisÏ nik over the degree of cooperation with the international agencies in Bosnia in1996/7. This con� ict effectively ended the control of the RS government over itseastern part. Even after the departure of both KrajisÏ nik and PlavsÏ ic from the politicalscene in the aftermath of the 1998 elections, the government had only limited in� uenceover all of the Republika Srpska; in many respects, geography played into the hands ofpolitical divisions. In addition, neither the nationalist government, nor the moremoderate one of Milorad Dodik, could claim signi� cant economic, social or politicalprogress in the entity.38 Two key factors contributing to the dysfunctionality of theRepublika Srpska have been the detrimental role of Slobodan MilosÏ evic and thecontinued economic and social decline of Serbia in the second half of the 1990s. Inaddition, the division of the political elite of the Republika Srpska over cooperation withthe international community rendered governance more dif� cult. Although the Repub-lika Srpska itself does not provide for power-sharing at any level and emphasizes its‘Serb’ nature39 (reversed partly by the Constitutional Court ruling in 2000), thegovernment of Milorad Dodik, and currently of Mladen Ivanic, has had to rely on thesupport of Bosniac parties.

This form of power-sharing has been largely informal and has allowed for onlylimited direct participation of non-Serb parties in governance. Their support wasmostly based on the interest in avoiding the return of an extreme nationalist govern-ment. The provisional electoral law that allowed refugees to vote in their original placeof residence has made the political representation of the Republika Srpska more diversethan its actual population distribution. For example, in the November 2000 electionsfor the RS Assembly, predominantly Federation-based parties—such as the SDA,

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Stranka za BiH (Party for Bosnia–Herzegovina), SDP and the Croat parties—gainednearly 20% of the vote.40 While the share of non-Serb population on the territory of theRS before the war amounted to nearly 50%, the representation of Bosniacs and Croatsin parliament exceeds (the current) demographic distribution. Nevertheless, in theabsence of effective decentralization (which would empower more non-Serb or mixedadministrations in areas of refugee return), and without any power-sharing mechanismsbeyond the coalition between moderate Serb, Bosniac and Croat parties in the Repub-lika Srpska, it would be misleading to describe the status quo as power-sharing.

The Constitutional Court decision of July 2000 could be considered an importantstep in improving power-sharing on the level of entities. The court declared asunconstitutional under the constitution of Bosnia–Herzegovina parts of the entityconstitutions that declared the respective nations to be the constituent nations of theentities.41 As a result, the entities are forced to change their constitution so to includeall three nations as constituent nations. While the court decision does not directly affectthe institutional set-up of both entities, changes in the nature of governance in both areto be expected once the court decision is incorporated into the entities’ constitutions.The provisional constitutional commissions, as outlined above, are a direct result of thecourt ruling and symbolize the most signi� cant institutional change in Bosnia since theDayton Peace Accords, leaving the augmented role of the High Representative aside.

Role of the International Community

Next to the entities the role of the international community provides for a particularchallenge to the power-sharing system in Bosnia. The participation of internationalagencies in the implementation of the peace process has been widely viewed as beingcrucial in the success of maintaining peace in Bosnia.42 The role of internationalorganizations was originally intended at facilitating the domestic decision-makingprocess by insuring adequate security for citizens (SFOR, IPTF), creating the economicframework for successful governance (EU, UN) and by promoting democratic andmore tolerant institutions and processes (OSCE). Even the High Representative as themost in� uential international representative in Bosnia was originally limited to facili-tate, monitor, and report on the civilian aspects of the peace process. One of his primepowers was the � nal authority of the interpretation of the DPA.43 In recognition thatthese powers did not suf� ce to successfully implement the peace accords, after 1997 theHigh Representative was equipped with additional powers, which transformed himfrom a facilitator to an integral institution of the current system of government inBosnia.44 Equipped with both legislative and executive powers, the High Representative(HR) has emerged as the most in� uential institution in Bosnia—and the only one notformally based on power-sharing.

Accomplishments of the High Representative

Since this increase in power to the High Representative, the of� ce has passed over 100laws and decisions—ranging from the state symbols and license plates to pensionfunds—and dismissed over 60 public of� cials from of� ce, including a president of theRepublika Srpska and the Croat representative of the Bosnian Presidency.45 Resultingfrom this development, Bosnia has gained some attributes of a protectorate since 1997.This followed suggestions of a number of Bosnian intellectuals, who advocated aprotectorate to reduce the role of the nationalist parties.46 Until the post-election

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coalition building in the winter of 2000/2001, concrete improvements in the system ofpower-sharing as a result of the increased powers of the High Representative were notvisible. The tangible success of the High Representative’s increased role has been thepassing of signi� cant legislation that would have either been postponed inde� nitely orbeen watered down.47 The dismissal of public of� cials could also be interpreted as asuccess. The case has been made, however, that the successful outcomes notwithstand-ing, the process in fact hurt the development of power-sharing structures. As MarcusCox details, the High Representative’s decisions relieve the participants in the power-sharing structures from negations and compromises, effectively relieving them fromtheir responsibilities, and allowing nationalist politicians to advocate uncompromisingpositions without the fear of being blamed if no compromise is found.48 As a result,‘nationalist politicians have often welcomed the High Representative’s interventions,which relieve them of the responsibility for dif� cult political positions’.49 The power-sharing institutions in Bosnia, in addition to their original weaknesses, have beenfurther weakened by the strengthening of international intervention. It is neverthelessimportant to note that the representatives of the three nationalist parties demonstratedlittle willingness to engage in serious negotiations even before the enhancement of theHR’s role.

Within the layers of governance, international representation is more closely inter-linked with Bosnian institutions. The Constitutional Court, the Human Rights Cham-ber and the Central Bank incorporate signi� cant international participation. Theinternational judges and Governor of the central bank are not representatives ofinternational organizations, but merely appointed by them (the European Court ofHuman Rights, the Council of Europe and the IMF, respectively). As such theybecome ‘Bosnian’ actors, with the primary advantage of not being a member of thethree national groups and thus resembling a neutral arbiter and mediator within theseinstitutions.50 The inclusion of international members into domestic institutions bringsthe advantage of not having to bypass domestic institutions to take decisions. Inaddition, the process of interethnic negations is only slightly impaired.

In examining the nature of the power-sharing mechanisms in Bosnia, it has becomeclear that the dysfunctional nature of the entities with regard to power-sharing anddecision-making, as well some aspects of the international powers exercised in Bosniacontribute signi� cantly to some key problems of the complex institutional structure ofthe country. Most of the power in the country is currently exercised by the HighRepresentative or by the entities, both of which have no, or only inadequate, power-sharing mechanisms. At the same time, the nature of the problems prohibits ‘quick� xes’ to the problems of power-sharing in Bosnia.

Alternatives to Dayton

Both international observers and domestic politicians and intellectuals have argued fora change of the current system of governance in Bosnia. Members of the internationalcommunity engaged in implementing the DPA have, however, been � rm in arguingagainst changes in the ways the country is governed.

The most fundamental changes were proposed by the Stranka za BiH, led by thewartime Bosnian Prime Minister Haris SilajdzÏ ic. He and his party, now as part of theAlliance for Change participating in the Federation and joint governments, haveadvocated a ‘Dayton 2’ which would change the institutional structure of the country.Most importantly, the party proposed the abolition of the entities or alternatively the

Bosnia–Herzegovina 215

introduction of a House of Peoples in the Republika Srpska that would also representthe other constituent people (and others).51 A similar proposal was raised by DrazÏ enBudisÏ a, president of the Croatian Social–Liberal alliance, a partner in the Croatiangovernment. BudisÏ a suggested in the light of the establishment of the Croat self-govern-ment in Herzegovina to transform Bosnia into a Federal State consisting of 12–14cantons. His suggestion would de facto extend the institutional arrangement of theFederation to the whole country.52 The cantonization of all of Bosnia, as � rst proposedin the Vance–Owen peace plan in 1993,53 could provide for a degree of decentralizationwhile decreasing the asymmetry of the state and increase the need for cooperation. Theproposal was met by criticisms from the High Representative Wolfgang Petritsch,however. Besides the unwillingness to change the Dayton Accords, his criticism relatedto the origin of the proposal. It was seen as implicit support for the Croat self-govern-ment in Bosnia.54 An additional key problem of such a proposal, despite some obviousmerits, is the fact that the Republika Srpska and the Serb political elite vehementlyoppose any such change.

On the other end of the political debate the argument is made that changes in thestructures are not required, but rather in the practices. This case has been madeprimarily by the international community that has advocated a more robust implemen-tation of the existing power-sharing structures and actively promoted moderate politicalforces into public of� ces through informal means (e.g. � nancial and logistical aid,media publicity). This has created a curious situation where multi-ethnic parties andcandidates promoting a more inclusive conception of political processes are discour-aged by the structures of the political institutions, but promoted by those who designedand defended them. The reality of these practices has produced mixed results. Theopen support of the International Community for Biljana PlavsÏ ic and Milorad Dodikwas probably counterproductive both in terms of insuring public support and also inglossing over fundamental problems of both politicians’ records—one as an indictedwar criminal, the other as a politician overseeing economic stagnation and corruption.In other cases, such as the Alliance for Change and its partners emerging in thepost-election negotiations in the winter of 2000/2001, there is the potential of changingthe functioning of institutions through a change of power-holders.

Conclusion

To tie the functioning of power-sharing to the elected of� cials holding positions in thissystem cannot provide answers for the problems of the system, as a return of lesscooperative political elites remains possible. It also neglects the basic premises ofpower-sharing institutions, which are intended to provide an incentive structure for theinclusion of those political actors whose main interest may not be cooperation.

The aforementioned decision of the Constitutional Court has raised some fundamen-tal questions, not only regarding the entities, but also the joint state. Many of thearguments of the Constitutional Court discussed not only the constitutionality of theinstitutionalization of ethnic dominance, but also their impact on the quality of democ-racy in Bosnia.55 The criticism of the exclusion of ‘others’ in the Federation by theConstitutional Court, mentioned above, can be applied similarly to the joint state,where the only difference to the Federation lies in the inclusion of Serbs. ‘Others’, bethey minorities or persons from ethnically mixed marriages, remain excluded frommany layers of the power-sharing structure. It is not only the exclusion of segments ofthe population that needs to be addressed on a state-wide level—it is also the over-in-

216 Florian Bieber

stitutionalization of ethnic identities, as detailed by the Constitutional Court withregard to the Federation and the election of of� cials.56

The HDZ-declared Croat self-government has overshadowed and, some argue,hijacked,57 an emerging constitutional debate in Bosnia about new ways to promotepower-sharing. While the new governments, dominated by the Alliance for Change,seem to work more effectively than previous nationalist ones, the need to strengthenexisting institutions is widely recognized. Such a project remains highly contentious,and places the three national groups, as well as the multinational parties, on opposingsides.58

NOTES

1. Extensive bombings of military positions of the Republika Srpska did take place in August 1995.These were the exception rather than the rule in the policy of the West. Despite the confrontationalnegotiating style of Richard Holbrooke, the countries attempting to end the war in Bosnia wereunwilling to enforce a peace settlement with the use of force, as, for example, they did in Kosovoin 1999.

2. Schneider raises the issue of the rati� cation of the accords and points to the de facto exclusion oflegislative bodies in the DPA. See Heinrich Schneider, ‘Friede fur Bosnien–Herzegowina? DasVertragswerk von Dayton als Herausforderung fur Europa’ (‘Peace for Bosnia–Herzegovina? TheDayton Treaty as a Challenge for Europe’), Integration, Vol. 19, No. 1, 1996, pp. 1–2.

3. Ulrich Schneckener, ‘Making Power-Sharing Work: Lessons from Successes and Failures in EthnicCon� ict Regulation’, InIIS-Arbeitspapier, Vol. 19, 2000.

4. This is likely to change with the adoption of a permanent electoral law. The OSCE-OHR proposedlaw still foresees the same double-delimitation, but the Bosnian Council of Ministers has advocatedthe possibility for Serbs from outside the RS and Bosniacs and Croats outside the Federation torun for Presidency. The draft election law, as proposed by the OSCE-OHR, based on therecommendations of international and domestic legal scholars, is available at: , http://www.oscebih.org/documents/draftelectionlaw/eng/del-eng.htm . .

5. The constitutions of Bosnia–Herzegovina or the DPA at large do not attempt at de� ning themembership in the different national communities, allowing—hypothetically—for a Croat, Bosniacor a candidate of mixed descent to run as a self-declared Serb in the elections for representationof the Republika Srpska in the Presidency.

6. In the absence of a post-war population census only rough estimates exist of the populationdistribution in both entities. According to some estimates, over 110,000 non-Serbs lived in theRepublika Srpska in 1998, which constitutes approximately 12%. In the Federation some 450,000Serbs and ‘others’ lived in 1998, i.e. approx. 17%. These numbers did increase substantially in1999 and 2000. International Forum Bosnia, ‘The Return of Refugees and Displaced People as aPrecondition for the Survival of Bosnia and Herzegovina’, Sarajevo, March 1999.

7. Arend Lijphart, ‘The Power-Sharing Approach’, in Con� ict and Peacemaking in Multiethnic Societies,ed. Joseph V. Montville, New York: Lexington Books, 1991, pp. 497–498.

8. Donald L. Horowitz, Ethnic Groups in Con� ict, Berkeley: University of California Press, 1985.9. This also applies to other minorities that do not belong to any of the three nations.

10. Constitutional Court of Bosnia–Herzegovina, Partial Decision, Case No. U5/98-III (1.7.2000),para. 120.

11. See Lijphart, ‘The Power-Sharing Approach’, op. cit.12. Art. V/4, Constitution of Bosnia and Herzegovina (1995).13. Such a representation is dif� cult to achieve, as illustrated by the � rst election in Bosnia in 1990.

A seat in the Presidency was reserved for ‘Yugoslavs’. The seat was, however, won by a memberof the SDA (Ejup Ganic), while representatives of multiethnic parties lost. The absence of a clearidentity marker poses the danger that such representation might be ‘hijacked’ by representatives ofone national group and used to enhance their strength in relation to others.

14. Cazim Sadikovic, ‘Ko sÏ titi vitalne interese gradjana BiH?’ (‘Who Protects the Vital Interests of theCitizens of BiH?’), Ljudska Prava (Human Rights), Vol. 1, No. 3–4, 2000, pp. 85–88.

15. OHR Press Release, ‘High Representative Issues Decision Establishing Interim Procedures toProtect Vital Interests of Constituent Peoples and Others, Including Freedom From Discrimi-

Bosnia–Herzegovina 217

nation’, 11 January 2001; OHR Press Release, ‘High Representatives Names Members of theConstitutional Commissions of the Entity Parliaments’, 7 February 2001.

16. Constitutional Court of Bosnia–Herzegovina, Partial Decision, Case No. U5/98-I (29./30.1.2000),para. 32.

17. Dwight Herpreger, Distribution of Powers and Functions in Federal Systems, Ottawa: Government ofCanada, Privy Council Of� ce, 1991; available online at: , 198.103.111.55/aia/doc/english/per-spective/constitutional/powers1.html . (19 March 2001).

18. Art. I/1, Constitution of Bosnia and Herzegovina (1995).19. Marcus Cox, State-Building and Post-War Reconstruction: Lessons from Bosnia, the Rehabilitation of

War-Torn Societies, Geneva: CASIN, January 2001, p. 6.20. Schneider has compared Bosnia with the European Union, referring to the German Constitutional

Court describing the EU as a ‘Staatenverbund’ (Association of States). Heinrich Schneider,‘Friede fur Bosnien–Herzegowina?’ op. cit., p. 4.

21. Although defense is not enumerate as competence of the state (Art. III/1, Constitution of Bosniaand Herzegovina, 1995), ‘… each member of the Presidency shall, by virtue of the of� ce, havecivilian command authority over armed forces’. Art V/5(a) Constitution of Bosnia and Herzegovina(1995).

22. This is enshrined in the constitution and has been reiterated by the Supreme Court of Bosnia(Case No. U5/98-I (29/30.1.2000), para. 10), see also Omer Ibrahimagic, Supremacija Bosne iHercegovine nad Entitetama (Supremacy of Bosnia and Herzegovina over its Entities), Sarajevo: VijeceKongresa BosÏ njacÏ kih Inteletualaca and Kult B, 1999. This interpretation is not undisputed,especially from politicians and legal scholars from the Republika Srpska.

23. This position is, for example, also taken by Cvetan Cvetkovski in his analysis of the DaytonAccords. Cvetan Cvetkovski, ‘The Constitutional Status of Bosnia and Herzegovina in Accordancewith the Dayton Accords’, Balkan Forum, Vol. 4, No. 2, 1996, pp. 115–116.

24. BrcÏ ko Arbitration Tribunal for Dispute over Inter-Entity Boundary in BrcÏ ko Area, Final Award(5.3.1999), para. 10 and 11. The status of BrcÏ ko resembles the role of the District of Columbiawithin the USA.

25. As argued more radically by John Mearsheimer and Chaim Kaufman, see, for example, Chaim D.Kaufman, ‘When All Else Fails: Ethnic Population Transfers and Partitions in the TwentiethCentury’, International Security, Vol. 23, No. 2, 1998, pp. 120–156.

26. Will Kymlicka, ‘Is Federalism a Viable Alternative to Secession?’, in Theories of Secession, ed. PercyB. Lehnig, London and New York: Routledge, 1998, pp. 139–140.

27. Ibid., p. 141.28. See, for example, the reports of the International Crisis Group.29. See, for example, International Crisis Group, ‘Is Dayton Failing? Bosnia Four Years after the

Peace Agreement’, Sarajevo/Brussels, 28 October 1999, p. 53.30. Art. III/3 (a), Constitution of Bosnia and Herzegovina (1995).31. The complete list of the joint institutions’ responsibilities is listed in Art. III/1, Constitution of

Bosnia and Herzegovina (1995).32. Quoted from Steven L. Burg and Paul S. Shoup, The War in Bosnia–Herzegovina. Ethnic Con� ict

and International Intervention, Armonk, NY: M. E. Sharpe, 1999, p. 377.33. For details, see European Stability Initiative, ‘Reshaping International Priorities in Bosnia and

Herzegovina, Part Three: The End of the Nationalist Regimes and the Future of the BosnianState’, Berlin, Brussels, Sarajevo, 22 March 2001.

34. He was dismissed by the High Representative in March 2001 after declaring the Croat self-govern-ment.

35. Dnevni Avaz (Daily Voice), Sarajevo, 16 February 2001; also see International Crisis Group,‘Turning Strife to Advantage: A Blueprint to Integrate the Croats in Bosnia and Herzegovina’,Sarajevo/Brussels, 15 March 2001.

36. See Richard Holbrooke, To End a War, New York: Random House, 1999.37. See International Crisis Group, ‘Republika Srpska—PoplasÏ en, BrcÏ ko and Kosovo: Three Crises

and Out’, Sarajevo, 6 April 1999.38. Despite the dismal situation in most of the Federation, the economic situation in the RS has been

signi� cantly worse. See, for example, Reporter (Banja Luka), 28 June 2000.39. For example, the RS constitution in its preamble referred to the struggle for freedom and

independence of the Serb people and Art. 1 declared the state to be of the ‘Serb people and of allits citizens’.

218 Florian Bieber

40. All election results from , www.oscebih.org . .41. Constitutional Court of Bosnia–Herzegovina, Partial Decision, Case No. U5/98-III (1.7.2000).

This decision of the Constitutional Court was probably only possible because it does not have aminority veto. Of the nine judges, � ve—the three international judges and the two Bosniacjudges—voted for, and four—the two Croat and two Serb judges—voted against. The decision waswelcomed by the Bosniac parties and also the Croat parties, while it was condemned by most Serbparties. ONOSA (Sarajevo), 3 July 2000; SRNA (Banja Luka), 3 July 2000.

42. There have been severe criticisms of the role of international agencies and their policies. See, forexample, David Chandler, Bosnia: Faking Democracy after Dayton, London and Sterling, VA: PlutoPress, 1999.

43. Annex 10, DPA, 1995.44. At the Conference of the supervisory Peace Implementation Council (PIC) in Bonn in December

1997, the HR was given the permission to remove of� cials from of� ce who violate the DPA and,if the legislative bodies of Bosnia are not able, to impose laws. Bonn Peace ImplementationConference 1997, ‘Bosnia and Herzegovina 1998: Self-sustaining Structures’, Bonn, 10 December1997, available online at: , http://www.ohr.int/docu/d971210a.htm . .

45. The decisions are listed at the website of the Of� ce of the High Representative: , http://www.ohr.int/decisions.htm . .

46. See, for example, DzÏ emal Sokolovic, ‘Social Reconstruction and Moral Restoration’, in Recon-structing Multiethnic Societies: The Case of Bosnia Herzegovina, eds DzÏ emal Sokolovic and FlorianBieber, Aldershot: Ashgate, 2001, pp. 93–106.

47. The successes are very tangible when joint Bosnian license plates proved instrumental in reestab-lishing cross-entity travel. The property laws enacted by the High Representative also facilitateminority returns.

48. Marcus Cox, ‘State-Building and Post-War Reconstruction’, op. cit., pp. 12–15.49. Ibid., p. 14.50. In addition, none of the international members of these bodies can be from Croatia and Yugoslavia

in a further attempt to ensure their neutrality. Art. VI, Art. VII, Constitution of Bosnia andHerzegovina, (1995); Annex 6, DPA (1995).

51. The main electoral slogan of the SBiH was ‘Bosna bez entiteta’ (‘Bosnia without Entities’). See theinterview with SilajdzÏ ic in Slobodna Bosna (Free Bosnia), Sarajevo, 30 November 1999.

52. Globus (The Globe), Zagreb, 7 March 2001.53. See Steven L. Burg and Paul S. Shoup, The War in Bosnia–Herzegovina, op. cit., pp. 214–249.54. Nacional (The National), Zagreb, 22 March 2001.55. This is a frequent objection to consociational democracies in general; see, for example, Kenneth

D. McRae, ‘Theories of Power-Sharing and Con� ict Management’, in Con� ict and Peacemaking inMultiethnic Societies, ed. Joseph V. Montville, New York: Lexington Books, 1991, p. 96.

56. See above and Constitutional Court of Bosnia–Herzegovina, ‘Partial Decision’, Case No. U5/98-III (1.7.2000).

57. International Crisis Group, ‘Turning Strife to Advantage’, op. cit.58. Nurko Pobric, ‘Ustavne Reforme u Bosni i Hercegovini—“Za” i “protiv” ’ (‘Constitutional Reform

in Bosnia and Herzegovina—“For” and “Against” ’), Ljudska Prava (Human Rights), Vol. 1, No.3–4, 2000, pp. 77–81.