Venice Commission on Bosnia-Herzegovina

Teekay was looking forward to the Venice Commission’s report on Bosnia-Herzegovina last week. (The Venice Commission, for those of you who don’t lie awake at nights in excited anticipation of its next publication, is the constitutional reform advisory body of the Council of Europe, which in turn is not to be condused with the European Council.)

Well, the report’s out – not yet on their website but they’ve sent me a copy. It’s not as radical as some in Bosnia-Herzegovina might have liked, but given the Venice Commission’s normally relatively anodyne pronouncements it’s pretty strong stuff.

The conclusions are as follows (all emphasis is mine):

The Commission appreciates the fact that the use of the Bonn powers by the High Representative was beneficial for BiH and its citizens and a necessity following a bloody war. However, this practice does not correspond to democratic principles when exercised without due process and the possibility of judicial control. Its justification becomes more questionable over time. The Commission therefore calls for a progressive phasing out of these powers and for the establishment of an advisory panel of independent lawyers for the decisions directly affecting the rights of individuals pending the end of the practice. [Good call on this one, by the way, Teekay!]
While BiH may still need more guidance from the international community, this could be provided by more subtle means. At present, the High Representative is at the same time the EU Special Representative. If he were to retain only the role of EU Special Representative comparable to the practice in ?the former Yugoslav Republic of Macedonia? [sic, including quotation marks], this would allow the transformation of the role of the High Representative from a decision-maker into that of a mediator. The interest of the people of BiH in European integration should ensure the effectiveness of this role.

To sum up, the time seems ripe to start a process of reconsideration of the present constitutional arrangements in BiH and the impetus provided by the Parliamentary Assembly [of the Council of Europe] in this respect is most welcome. Constitutional reform is indispensable since present arrangements are neither efficient nor rational and lack democratic content.

A central element of the first stage of constitutional reform has to be a transfer of responsibilities from the Entities to BiH by means of amendments to the BiH Constitution. This is an indispensable step if any progress is to be achieved in the process of European integration of BiH. This step will be difficult since, as with other constitutional amendments in BiH, it will have to be based on consensus among the representatives of the three constituent peoples. Constitutional reform cannot be imposed. Another element of the first stage should be a streamlining of decision-making procedures within BiH, especially with respect to the vital interest veto, and a reform of the provisions on the composition and election of the Presidency and the House of Peoples which seem either now or following the entry into force of Protocol No. 12 on 1 April 2005 incompatible with the ECHR. The reform of the vital interest veto at the State level could best be carried out in parallel with similar reforms in both Entities.

Another pressing issue is the territorial organisation of BiH. In the view of the Venice Commission, any solution implying abolishing the two Entities seems unrealistic in a medium term perspective since this would not be accepted within the RS. A reform of the structures within the FBiH cannot be put on hold in the vague hope of a change of approach in the RS. The most realistic option for such reform, which would also be in line with general European trends, would be to concentrate legislative responsibilities within the FBiH at the Entity level. At the same time, local government in both the FBiH and the RS should be strengthened. Completely abolishing the Cantons would be an even better solution but this may not be politically possible for the moment.

Further constitutional reforms, changing the emphasis from a state based on the equality of three constituent peoples to a state based on the equality of citizens, remain desirable in the medium and long term. If the interests of individuals are conceived as being based mainly on ethnicity, this impedes the development of a wider sense of nationhood. In this context the people of BiH will also have to decide whether they want to replace their present Constitution negotiated as part of a peace treaty by an entirely new Constitution which would enjoy full democratic legitimacy as the fruit of a democratic constituent process in BiH.

(Apologies for the length of the quote, but this important document is not yet widely available, although I have been told that the text here is considered final and public.)

So there we have it: no striking down by the Commission of either the High Representative’s powers or of the entity/canton structure, as some were hoping for, but instead a prescription for a reform agenda to create a workable state out of the constitutional dog’s breakfast that Bosnia-Herzegovina was left with as a result of the Washington (1994) and Dayton (1995) agreements.

Most significantly, the onus for action is largely left with local actors. If the people(s) of Bosnia-Herzegovina want a better constitution, they will largely have to negotiate it themselves, with perhaps external mediation but with no prospect of external imposition. After all, imposing the current constitutions is what gave rise to this in the first place.

(PS to my hosts: Can you fix the styles definition here so that <blockquote> doesn’t result in monstrously huge text? I’d have preferred to use <blockquote> rather than italics for the quote above.)

5 thoughts on “Venice Commission on Bosnia-Herzegovina

  1. Well… as you say, by the standards of the Venice Commission it’s pretty spicy stuff. However, as so often in this part of the world, it looks like good intentions are leading straight to the door marked “All Hope Abandon, etc.”

    Let’s review the bidding:

    1) Constitutional reform is “indispensable”.

    2) Constitutional reform must transfer responsibilities (and, presumably, /power/… is there a formal rule that this word can’t be used in this sort of discussion, or is it just a very strong convention?) from the entities to BiH.

    3) Constitutional reform cannot be imposed.

    Now. Given the current composition of the legislative and executive branches of the BiH entities, voluntary constitutional reform giving power to the center seems about as likely as, hm, me flying to the Moon by putting my head between my legs and spitting /really hard/.

    It’s of course possible that the good people of BiH may change their minds and elect… well, they’re not going to elect a bunch of non-nationalist technocrats. But maybe they’ll elect some folks who are a bit less interested in jingoistic posturing and a bit more in getting stuff done? Maybe they’ll get tired of the current bunch of dickheads, and willing to try something new?

    Perhaps. But based on the experience of BiH’s neighbors, it’s going to require at least one full electoral wash-and-rinse cycle, and probably more, before this even begins to happen. And then maybe it, well, won’t.

    I have to say, visiting the two communities does not fill one with hope. They’re teaching their kids different histories, they’re clinging to the old out of fear, and their leaders are still playing the same old tunes over and over and over. It’s easy to see why they’re re-electing the dickheads. What’s harder to see is when and why they’ll stop doing so.

    All that said, I do give the Venice folks kudos for spotting the thread that (maybe) dangles out of the knot: the High Rep. Nothing’s going to happen as long as there’s a proconsul who’s really running things, leaving the elected representatives free to shriek and throw feces. The current arrangement is neither fish nor fowl, and being half a colony is worse than either being colonized or being free. The EU is not going to say dammit, these people can’t govern themselves, we’re turning the clock back to 1908 for the next generation. (Though, in practice, it did come pretty close.) So it has to try the other option and give them back real power — oh no! the p-word again! — including the power to screw up bigtime.

    Given the speed at which these wheels turn, we’re looking at 1-2 years before that can happen, followed by, mm, another 4-5 years before the BiHers may put some non-dickhead representatives in place… the aforementioned electoral wash cycle. So we’re probably looking at 2010, more likely 2012 or so before serious constitutional reform is really on the table. Does Brussels have that sort of patience? You tell us.

    Alternatives: we can elide point #1 and accept some cosmetic changes that won’t really make a difference in terms of giving power back to the center. I think this is unlikely, but given the various byes granted to some recent EU candidates and (cough) members, I don’t think it can quite be ruled out.

    Or, we can elide point #3 and jam it down their throats. Presented as some combination of carrots and sticks and such, but netting out to an offer that really, really can’t be refused. I’m not saying good or bad here. I’m just saying that’s on the menu, and will certainly be considered after the first round of blandishments fail to produce any constructive response from Mujo and Haso.

    Oh, and then there’s the nuclear option: give up on BiH altogether, pull a Congress of Berlin II: The Sequel!, and go for some sort of general regional rewrite of boundaries, powers and obligations. But that’s pretty wildly unlikely, so never mind.

    Anyway. Another good post, and it is nice to see that Brussels is at least considering possibilities other than more of the same.

    cheers,

    Doug M.

  2. Well, given that it took 15 years from the fall of the Wall to EU accession for even the most apt candidates, I’m not surprised that BiH and co. may take a bit longer.

    Actually, I’m on the record here at AFOE as expecting Bosnians (and Herzegovinans, presumably) to vote for their first MEPs in 2014, so the time frame that Doug M. talks about above isn’t too far from my expectations.

    Patience is something Brussels has in abundance. It’s results that are sometimes the problem…

  3. David,

    Thanks for the tip, will bear it in mind.

    Doug M (exploiting my new knowledge), The EU is not going to say dammit, these people can’t govern themselves, we’re turning the clock back to 1908 for the next generation. Of course the EU (and US, and all the rest) did say more or less this when they gave the High Representative the Bonn powers in 1998. This is a policy with a natural sell-by date, because the international community doesn’t like paying for protectorates once sullen peace has replaced renewed war as the most likely alternative.

    Dougs both,

    One of the blind alleys the international community went down in post-war BiH was to buy the liberal Sarajevo consensus that the answer was to get the nationalists our of power, put the multi-ethnic opposition in power, and then let them get on with it. Quite apart from the fact that the electoral base of the opposition was basically limited to the greater Sarajevo and Tuzla areas, this was blown apart when the supposed non-nationalists got into power in 2001; they screwed up in government and lost the 2002 elections, a preliminary version of the wash-and-rinse cycle.

    Ashdown’s agenda since then has included two key desiderata: i) depoliticising the means of state coercion (military and police) so that future nationalist governments will find it much more difficult to use them to do evil, and ii) constraining the political paths available to the nationalist governing parties to be in line with Euro-Atlantic integration. The future of BiH does not depend on eradicating nationalist parties (which is not possible) but on taming them.

  4. A short sentence from an old, Bosnia born citizen: it is impossible a country like Dayton Bosnia can function now or ever, and it will be impossible to change Dayton Bosnia with nationalist parties here, and in the neighbourhood. So it will take too long for me to see different Bosnia, but even in grave, I will still believe in the possibility of Bosnia as state! The problems now, as 10 years ago, as 100 years ago are OTHER states and their interests!

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