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The future of Bosnia and Herzegovina remains the subject of intense debate. To mark the 25th anniversary of the Dayton Peace Agreement, members of the Wilson Center’s Working Group on the Western Balkans issued a report with recommendations entitled Fixing Dayton. In the spirit of debate, Robert M. Hayden, Professor at the University of Pittsburgh, offers the following comment. Report authors respond below. Hayden offers a brief final rejoinder below that.

A “New Deal” for Destabilizing the Bosnian Peace

Robert M. Hayden

The Report on Fixing Dayton: A New Deal for Bosnia and Herzegovina  urges changes to the constitutional structure that ended the Bosnian war, so that the country can “move from ethnocracy to more representative democracy.” These would curtail the powers of the Republika Srpska (RS) and the Federation of Bosnia & Herzegovina (FBH), greatly increase the power of the central government, and disempower “ethnically based political parties.” Supposedly, not taking these steps risks an “implosion” of Bosnia and Herzegovina (B&H) and the “generation of instabilities throughout Europe’s southeastern corner.”

Yet while making policy recommendations on the uninvited behalf of “the people” and “citizens of Bosnia,” the Report cites no reliable evidence on what those people seem to want, ignores well-documented facts contrary to its position, and makes demonstrably false assertions. Some of its proposals have been repeatedly rejected since 1990 by the elected representatives of Croats and Serbs of B&H, about half the population.

More relevant than the 25th anniversary of the Dayton Agreement was the simultaneous 30th anniversary of the first elections in post-socialist B&H, when the voters overwhelmingly partitioned themselves into three separate and mutually exclusive ethno-national constituencies: Bosniaks, Croats and Serbs. This tripartite division has occurred in every relatively free and fair election ever held in B&H, before or since. In this situation, representative democracy must mean a form of tripartite consociation between these three ethno-national constituencies, under their elected leaders. The Dayton system provides such a structure, even though the Croats and Serbs fought against being included in a Bosnian state. They accepted Dayton precisely because the central government would be almost without authority over them.

Two-thirds of B&H municipalities have 70%-99% one ethno-national community; at most nine of 143 municipalities have same demographic distributions as in 1991. There is still no reliable evidence that many Croats and Serbs of B&H are willing to accept governance by a centralized government.  Trying to centralize the state against their repeatedly demonstrated opposition is likely to bring on the very conflict that the Report purports to fear.

The Fundamental Error: Ignoring the Electoral Will of the Croats and Serbs

“Fixing Dayton” claims that “the citizens of the country … repudiated ethno-nationalist politicians in local elections” in November 2020. This statement is wrong in all Croat-majority municipalities, while in almost every Serb-majority municipality, Serbian nationalist parties won, as Bosniak nationalist parties did in almost all Bosniak-majority places except in Sarajevo. The Report thus falsely reports the political will expressed by most voters in B&H. Since 1990, demands for a centralized state have only been made by parties that attract almost exclusively Bosniak voters, while being repeatedly rejected by the elected representatives of the Croats and Serbs, whose peoples fought the war to ensure it would not be imposed upon them.

Further, before the 2020 election, the Social Democratic Party (SDP) proposed amendments to the Constitution that would enact the centralization proposed in “Fixing Dayton.” The SDP received less than 5% of the vote in the RS and in the Croat-majority municipalities in FBH, doing relatively well only in a few heavily Bosniak-majority ones. “Fixing Dayton” thus pushes a position taken by Bosniak political actors, repeatedly opposed by the elected representatives of Croats and Serbs since 1990, and rejected in the 2020 elections.

Foreigners Creating “Domestically-driven, Citizen-led” Changes?

The stated goal of the authors is to enable the United States and the European Union (EU) “to work with Bosnia’s citizens to achieve a functional and effective Bosnian state that enjoys popular legitimacy” (p. 2). This is to be achieved by “structural reforms” that must be “citizen-led” (p. 5) and “domestically driven” (p. 8), though this apparently cannot take place without the United States “setting the stage” and “providing a safe space.”

More than that: the West must “conven[e] citizens to determine changes to the country’s constitution and decision-making structures that are feasible in the short- to medium-term, and deal decisively with obstructionist actors who have blocked previous reform efforts” (p. 8).

Really? Which “citizens” would those be? Selected by whom, to represent which Bosnians? If revisions of Dayton are to have popular legitimacy in Bosnia, they will indeed need to be domestically driven, but it is incoherent to assign responsibility to domestic Bosnian actors yet arrogate to foreigners the determination of which Bosnians are legitimate. Further, what kind of “decisive dealing” against obstructionists is meant, and what counts as obstruction? Since nearly every Croat or Serb elected since 1990 has been against what “Fixing Dayton” demands, this would seem to be a plan to ban the political programs favored overwhelmingly by those peoples. Proclaiming the repeatedly demonstrated political will of Croats and Serbs to be illegitimate will not induce them to accept instead whatever foreigners mandate.

The authors want to enable “individuals who do not identify with one of the ‘constituent peoples,’ to … be able to design and implement a new architecture of the state more responsive to their needs.”  Yet the 2013 census found very few such cosmopolitan a-nationalists. More than 96% of the population declared themselves Bosniak, Croat, or Serb, and 99% of those who did so also indicated the corresponding language and religion, patterns seen in all censuses, and elections, in Bosnia since the end of the Ottoman period. Empowering 1% is an odd definition of democracy.

 

Proposing to Disenfranchise Half the Population under the Pretense of Democratizing

Since the three mutually exclusive ethno-national constituencies have been manifested in every relatively free and fair election ever held in B&H, it is difficult to see how their winners do not have legitimacy, with one exception. International interveners changed the electoral law in 2005 to let all voters in the FBH vote for the Croat and Bosniak members of the Presidency, instead of limiting votes for the Croat member to Croats and for the Bosniak member to Bosniaks. Since the Bosniaks vastly outnumber the Croats, the Croat member of the presidency has repeatedly been elected by Bosniaks, with almost no Croat votes, giving him no legitimacy among the Croat population. Considering this recent history, amending the electoral laws as a means by which “the power of ethnically-based political parties can be circumscribed, [and] … types of cross-ethnic electoral incentives could be introduced,” are not likely to be seen as legitimate by Croats and Serbs.

 

A Proposal for a NATO Occupation Force?

The most ominous recommendation of the Report is that “EUFOR, or a NATO-led Force” should be able “to enforce High Representative decisions.” This is a call for military occupation, a foreign force to support a foreign viceroy against the local citizens, which also shows the falsity of the statement that this whole scheme would be “domestically driven, citizen-led.”

There is as little evidence that people living in B&H want or anticipate conflict as there is that Croats and Serbs will accept the imposition on them of rule by a centralized government selected by foreigners. However, if someone wanted to produce conflict in B&H, a very promising way to do so would be to try to centralize the state against the will of about half of its population, non-randomly distributed ethno-nationally among those three constituent peoples. The chances of NATO troops being treated like the British Army in Northern Ireland during the Troubles, or the Indian Army in Kashmir, seem high.

 

Replacing the “New Deal” with Evidence-Based Proposals

Popular legitimacy for changes to Dayton will require engaging political leaders elected by the three ethno-national constituencies. The constituent peoples exist socially and politically in ways that an undifferentiated a-national citizenry imagined in the Report does not; and they now live mainly in ethnically-defined polities.

Serious proposals to reform B&H must take as their starting point the realities of this divided country. For example, demands for secession have come mainly in response to efforts to eliminate the RS, de facto if not de jure, under an all-powerful central government. A prohibition on secession thus should be accompanied by one on the abolition of either entity, or of any canton within the FBH, or of such entity’s or canton’s legal powers and jurisdictions, without approval by referendum in that entity or canton. Further, reforms should ensure that the Central Electoral Commission, Constitutional Court, State Investigation and Protection Agency and the High Judicial and Prosecutorial Council of B&H, cannot be used by the members of one of Bosnia’s constituent peoples, by themselves or with the active engagement of foreigners, to try to impose centralizing rules on the entities or cantons, without the acceptance of the polity to be subjected to them.

Another crucial reform would be to undo the changes to the election laws that have disenfranchised the Croats from choosing Croat members of the presidency and of the House of Peoples by enabling Bosniaks to do so instead. It is difficult to see why Croats would abandon the demand for a separate Croat entity as long as they are unable to elect their own representatives.

Bosnia isn’t the way it is because of the Dayton system; it is the way it is because of the divided nature of Bosnian society. The citizens of B&H are more likely to start to feel commonality when some of them are no longer being facilitated by foreigners in attempts to impose majoritarian rule – not simply majority rule – over the others, as proposed in the “Fixing Dayton” Report.


Response by Wilson Center Working Group Members

Kurt Bassuener, Reuf Bajrović, Tarik Bilalbegović, Tanya L. Domi, Mike Haltzel, Edward P. Joseph, Dženeta Karabegović, Jasmin Mujanović, Majda Ruge, Daniel Serwer, Faris Vehabović

Robert Hayden’s response to the Fixing Dayton report neatly illustrates the intellectual paucity and political exhaustion of the Dayton constitutional regime and its few remaining champions.

Hayden’s chief complaint is that the original report advocates for “imposing” a “centralized” Bosnian state, which he suggests would trample the political and democratic rights of the country’s ethnic Croats and Serbs. But because the report does not actually advocate either imposition or centralism – in fact, Point 9 of the report’s prescribed blueprint for constitutional reform gestures at a far greater degree of devolution to the municipal level than what Dayton presently contains – Hayden finds himself in the curious position of arguing against the idea of a liberal-democratic parliamentary regime in Bosnia and Herzegovina (BiH). As such, he ends up claiming that the standard constitutional arrangements of all EU polities is a dangerous and/or impossible objective for BiH – even though all relevant political actors in BiH agree that EU membership is the country’s principal foreign policy priority.

Instead, Hayden advances an internally incoherent argument:

I. The Dayton constitutional regime – the direct product of ethnic cleansing and genocide, on the one hand, and direct American intervention and mediation, on the other, and which was never passed by the Bosnian parliament and has never been officially translated into Bosnian/Croatian/Serbian – is the only legitimate compact for BiH because, supposedly, it is the only framework to which all Bosnian factions subscribe.

II. The active and ongoing threats at secession by the Serb nationalist regime in the Republika Srpska (RS) entity, and the widespread dysfunction of the Bosnian political system more broadly – typified by the ongoing, two-year long blockade of the formation of the Federation entity government by the Croat nationalist HDZ bloc – are proof that Serb and Croat political subjects reject any “centralist” political projects.

There are several other revisionist claims the author inserts – above all, an inaccurate, essentialist taxonomy of ethnicity and identity in BiH in both the lead up to the war and thereafter – but the limited nature of this exchange does not permit for a full dissection.

The primary problem is simple: the latter half of Hayden’s main argument directly contradicts the former. No constitutional regime that is being actively eroded by secessionist threats, while being simultaneously held hostage by a minor party – the HDZ won barely 9% of the national vote in the 2018 general elections – can be characterized as functional or legitimate. The very political actors Hayden implicitly champions in his comment – the Serb nationalist SNSD and their fellow nationalists in the HDZ – illustrate exactly that. BiH’s staggering emigration rate also clearly speaks to the fact that the Bosnian public has lost all trust in the ability or willingness of these parties to produce practical solutions.  

There is also the problem that Hayden cannot decide whether external mediation in Bosnian politics is legitimate or illegitimate. He maintains that the original Dayton Agreement is the only plausible constitutional regime for BiH. But Dayton is a decidedly made-in-America product. Yet Hayden rejects the very idea that the U.S. (or the international community more broadly) might have a vested interest in re-visiting the nature of BiH’s post-war political regime. Indeed, given that all EU and NATO candidate states – and Sarajevo, by repeated acts of parliament, has membership in both as its objective – have had to go through significant rounds of constitutional reform, it is unclear what future, if any, Hayden imagines BiH will have without the same. He goes so far as to refer to a proposed increase in the existing EU and NATO military presence in the country as an “occupation” force.

Despite his otherwise categorical rejection of reform as an ontological category, Hayden ends by laying out a series of changes to the existing Dayton regime that he does support. Taken together, these would lock-in the impunity of political elites from rule of law and limit the jurisdiction of BiH’s Constitutional Court.

Hayden rejects the input of Bosnians living in ethnically-mixed areas like Sarajevo, Tuzla, Brcko, and Mostar – even though these are the largest urban areas in the country – but would like to further empower the chieftains of the long-dominant kleptocratic, nationalist oligarchy. He, uniquely, wants the Bosnian state to abrogate its right to determine the nature of its own administrative divisions to appease secessionist actors and their foreign patrons. He wants to specifically address the issue of BiH’s election laws, but pointedly makes no reference to the binding Sejdic-Finci, Pilav, and Zornić decisions of the European Court of Human Rights. With respect to the Constitutional Court’s “constituent peoples”' decision, Hayden misleadingly bundles the HDZ’s opposition to the method for electing the BiH Presidency’s representatives from the Federation entity - which has remained unchanged since 1996 - with the process for allocating House of Peoples seats. One can only assume that, like the HDZ, Hayden is an advocate of still further legal and political segregation in BiH – even though such proposals are, essentially, legally void.

In sum, as Hayden inadvertently shows, there are no logical grounds on which to oppose constitutional reform in BiH. It is merely a matter of marshaling the political will to do so.  


Final Rejoinder 

 

Robert M. Hayden

My comment referred repeatedly to how the electorates of the three main constituent communities of Bosnia and Herzegovina (BiH) have voted, not only in 1990 and every election since, but in every election ever held in BiH.  I made no mention of any political party or leader.  If these authors have evidence that many Croats and Serbs of BiH would support the changes they propose they should have cited it. 

The rest of their argument does not address mine.  If their comments send readers back to my own piece to see “did Hayden really say That?,” they have done me a service.

What these authors describe as only “a proposed increase in the existing EU and NATO military presence” in BiH does not reflect the text of “Fixing Dayton.”  There, some of these authors criticized the present small “observer force” and want it replaced with “mobile units” that “can deploy anywhere in the country on short notice” and that “should not just monitor conflict but be able to … to enforce High Representative decisions.”  That’s an occupation force to impose foreign rule. I can’t resist citing a writer of the 19th century, who in some cases supported the enlightened intervention of civilized Europeans against “barbarians” (colonialism at its most obvious), yet still saw that “A government which needs foreign support to enforce obedience from its own citizens, is one which ought not to exist; and the assistance given to it by foreigners is hardly ever anything but the sympathy of one despotism with another.” (J.S, Mill, “A Few Words on Non-Intervention” [1859]). 

Finally, authors still have not clarified how foreigners will create “domestically-driven, citizen-led” changes, and impose a system rejected, overwhelmingly and repeatedly, by the Croats and Serbs of BiH, though favored by Bosniaks.  Their argument now is that the United States, not the Bosnian peoples, has the right to determine what system the latter must live in.  I ended by saying that the citizens of BiH are more likely to start to feel commonality when some of them are no longer being facilitated by foreigners in attempts to impose majoritarian rule – not simply majority rule – over the others, as proposed in the “Fixing Dayton” Report.  The response, as it happens, is signed by five people with names that are usually Bosniak, plus a number of non-Bosnians; no Serbs or Croats are included.  This is a prescription for destabilizing Bosnia.

 

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