What is to be done?
by Ljubomir Berberovic
It is not possible to search for ways of building a complicated state like Bosnia-Herzegovina without a deliberate and well-founded, i.e. a strictly rational, approach. Action presumes a detailed plan; a system of thought-out and grounded proposals that cannot be reduced to individual views. The central working party of the project Bosnia-Herzegovina: Possibilities and Perspectives of Development undoubtedly has a right, and duty too, to propose new initiatives, since it bases itself on the positions and conclusions of a series of expert conferences, debates and publications. The project has been going on for a decade and has produced several empirical analyses and findings. What is necessary at this moment is to articulate the project’s fundamental aims and reach an agreement on how to realise its basic purpose.
The need for changes, including constitutional changes, is more than obvious. There have been many ideas, proposals and initiatives, many of which are similar in nature. The procedure for adopting the current proposals for constitutional reform has not been accompanied, however, by any comprehensive or serious discussion of methods and priorities. The debate could have benefited from the experience of the NGOs which initiated and achieved positive changes in the three B-H constitutions [those of the B-H state and its two entities], with respect to the constituent status of all three main nationalities across the whole state territory. This action was successful because - despite the resistance of the legislatures, above all in the Serb entity - those empowered to interpret the matter decided that constituent status could be fitted into the Dayton framework.
The Dayton framework is open to all sorts of perceptions. Domestic politicians are able to interpret Dayton in the way that suits them best, but there is only one instance that has the right to deliver the ultimate interpretation: the international community, i.e. its high representative in Bosnia-Herzegovina. Its criterion for what is right is the value of any given innovation with regard to bringing integration into Europe closer. The government in Banja Luka views Dayton above all as a guarantee of the separateness of the Serb entity, and tends to overlook the binding constitutional changes it has adopted regarding equal constituent status for the three nationalities throughout Bosnia-Herzegovina, which render that separateness immaterial. The contradictory interpretations of the Dayton agreement are resolved either by consensus (internal factors) or by decision of only one interpreter (external factor).
The [original] negotiations in Dayton dealt primarily with establishing a line of demarcation between the warring parties, but came with a sizable legal-political package which the two sides accepted more or less readily - and largely without any great interest in it. The negotiators were most concerned with establishing the border, after which, they thought, each side would be able to manage matters in ‘their own’ territory of their own accord. No one paid attention to the fact that the two sides bound themselves to respect a hefty package of international law (human rights, etc) that are absolutely superior to all local legal acts. The normality of the Bosnian-Herzegovinian state, i.e. its compatibility with its contemporary European setting, is consequently legally envisaged and binding in accordance with Dayton itself.
Power of the High Representative
The guarantor and, as it turned out, the main initiator and executor of the corresponding deeds on the ground has been the international community with its organs or missions. Their main problem is judging the maturation of the political situation on the ground, in order to minimize the amount of outside energy needed for interventions. A typical example of this method was the establishment of the [common] customs service: the high representative simply waved aside protests referring nominally to Dayton. The high representative made his decisions by reference to the same Dayton. The question of VAT, the single army and other matters were resolved in a similar fashion. The direction of the movement is clear, as is its key subject. One can foresee too the bearers of eventual obstructionism.
The results of the project Bosnia-Herzegovina: Possibilities and Perspectives of Development pose an obvious task: it is necessary to stress the rational intellectual estimate that changes in the stated sense should proceed faster, since they are inevitable if we wish - as everyone swears they do - to join the European Union. It is necessary at this moment to ensure that the entities recognize in practice, and not just in an abstract legal sense, equal national and human rights throughout Bosnia-Herzegovina. This has been made easier by the fact that the required constitutional provisions exist, given that the Dayton agreement explicitly subordinates legislative acts passed by the entities to their international-legal obligations. What matters now is not a formal meeting of these obligations, but a change in the local rules of behaviour. The arbiter is known, his competencies and responsibilities are not hidden, control and sanctions are in his domain. That arbiter is the international community. It is also known who must implement the results of arbitration: the entity governments. One cannot assume that they are happy with this state of affairs, but this state is a reality that will have to last a while longer.
It is thus evident that if one is to achieve greater progress in the desired and by now well-established direction, it is necessary to address first of all the foreign factor, which up to now has contributed by far the most to normalization of the legal state and life within it, in the name of the global-civilizational aspects of Dayton. There is no doubt that the sole authorized interpreters of the Dayton agreement have furthered logical and integrative changes in the socio-economic and legal-constitutional system of Bosnia-Herzegovina, in the face of opposition on the part of the local oligarchies. These ethnic-political oligarchies seek to base their resistance in the first instance on the traumas of the past war, which are not just psychological or subjective but have left grave consequences for the social and economic structure of the whole population, with far-reaching repercussions in the political sphere.
A federation of cantons
It would perhaps make sense to propose that the Federation of Bosnia-Herzegovina be legally transformed into a Federation of B-H cantons. This could be the first step towards more serious modifications of the administrative division originating in the Dayton demarcation line. There would emerge at the same time an ‘internal initiative’, that as a rule is lacking in relation to rationalization of the country’s political order and its advance towards the model of a modern civic-democratic state. An invitation would be addressed to all political factors in the Federation which have recently declared their support for national equality and human rights across the whole territory of Bosnia-Herzegovina. At least up until the recent rejection in the federal assembly of the agreed changes to Bosnia-Herzegovina’s constitution, such a change in the Dayton agreement (a change to the name of one of the entities) appeared possible, based on a political consensus of the interested actors and enacted through the entity’s legal and democratically elected institutions.
For any constitutional provision of Dayton can be changed on the basis of internal agreement. This means that the name of the Federation could be changed, if an agreement could be reached within the Federation. Such a change could have an important symbolic meaning, since formal equality between the name of the state and the name of one of its parts would be transformed into a designation of the specificity of the administrative organisation of this part of the state. Resistance to Bosnia-Herzegovina as a single state finds a certain support also in the fact that - aside from many other Washington and Dayton paradoxes - only one of its parts formally bears the Bosnia-Herzegovina name.
It is impossible properly to evaluate Bosnia-Herzegovina’s social problems without regard to the international context. The contemporary world is fundamentally marked by the process of globalization. Political globalization is proceeding in the name of multi-party democracy and human rights, its economic counterpart in the name of market economy and free trade. We can see military globalization in the demand for transparency of military budgets, creation of international security systems, and a common struggle against terrorism. Economic globalization is based on the more or less universally accepted principle of a single and free world market.
It is paradoxical that opponents of globalization accept some aspects of it but reject others. For them, for example, reduction of local sovereignties is unacceptable, by contrast with the universal principle of human rights and democracy, which is evidently contradictory.
Globalization advances in accordance with widely accepted general rules. By analogy, it is not possible to do much in Bosnia-Herzegovina for the time being under the heading of ‘dissolution of entities’, ‘economic integration’, and ‘military unification’. But one can start many positive processes in the name of ‘human rights’, ‘Euro-Atlantic integration’ and such like.
Domestic and foreign political factors constantly insist that ‘this Bosnia-Herzegovina cannot go into Europe’. In line with this slogan, changes will be made that do not demand great investment of political (and other) energy on the part of the international community. When the conditions are right, it will be possible to pose also the question of rationality of the entities, of the war-induced changes in place names, and any other similar issue.
The confessions of people indicted by the Hague tribunal place in the hands of the international community all the arguments it needs in order to pose, when it so desires, the question of the origin of the ‘Serb Republic’ in Bosnia-Herzegovina. But there is no particular reason to hurry. This is true especially when one bears in mind the complicated chain of consequences of every decision, every move. One must bear in mind that global tendencies - whether local or world-wide - are pushing their way through a whole tangle of various divergent positions and interests, which is slowing them down but without changing their meaning. The same is true with reforms in Bosnia-Herzegovina.
It would seem incontestable that the most important task for constructive initiatives at this moment is a rational approach to Bosnia-Herzegovina’s reality, which consists in a patient search for the most fruitful ways of stimulating and accelerating changes, which are clearly going in the right direction - but not fast enough.
The author is currently a vice-president of the Academy of Arts and Sciences of Bosnia-Herzegovina, himself a distinguished scientist, and a prominent member of the Serb Civic Council. The text translated here is a modified and elaborated version of a paper originally presented to a round-table discussion ‘On the Need to Change the B-H Constitution’, held in Sarajevo in September 2003.