The Bundestag passes a resolution exacerbating instability in Bosnia and Herzegovina by rejecting the Dayton Accords. Under a misguided conception of electoral rights, the resolution abandons power-sharing in Sarajevo and contradicts established EU policy.
Belgium, (Brussels Morning Newspaper) In recent months, Bosnia and Herzegovina (BiH) has seen a negative spiral in stability and overall political conditions, culminating in BiH being recently passed over once more in its pursuit of EU candidacy. Attempting to address some of these problems is a recent German parliamentary motion, sponsored by coalition factions SPD, Greens and FDP. Unfortunately, the resolution — even while innocuously entitled ‘Provide support to BiH on the way to a better future’ — is dangerously imbalanced and explicitly rejects core features of the Dayton Accords. More than Bosnian-Serb separatism that the motion ostensibly aims to stem, the motion threatens to upset an already delicate balance in the Bosniak-Croat part of BiH, the Federation of Bosnia and Herzegovina (or “Federation” for short).
Structured along the lines provided for in the Dayton Accords, the state of BiH currently consists of two entities: the Serb-dominated “Republika Srpska” on 49% of the territory, and the Bosniak-Croat Federation on 51% of the land. Coaxed into union via intensive American and European diplomacy–a topic to which we shall return–the Federation is governed through a delicate and complex set of power-sharing mechanisms, collectively designed to represent a balance of BiH’s main ethnic groups of Bosniaks, Serbs, Croats, and other minorities.
Understandably, most attention within the international community has focused on forces within BiH pushing against the peace ensured at Dayton. Startlingly, however, the central element that the Bundestag resolution frames as the obstacle in the way of progress in BiH is itself the Dayton Peace Accords. In this way, the document recommending adoption of the motion (Beschlussempfehlung) reads:
The Dayton Peace Accords have considerably contributed to the fact that there has been no serious escalation of violence since 1995. Nevertheless, [the Accords] have also left the country without a functional state structure and have sooner worsened than overcome the ethnic split deepened by the war.
Therefore, even as the resolution recognizes Dayton’s role in allowing for thirty years of non-violence, it locates dysfunction and instability of the Bosnian state with the very nature of Dayton’s mechanism for maintaining an ethnic balance in decision-making. Indeed, elsewhere in the resolution the language is even more explicit in stating that, in a formulation to which I will return, “the so-called ‘Principle of Legitimate Representation’ is to be rejected”. To be sure, naturally any neutral observer can be supportive of a vision of a democratic country in which no complicated structures of ethnic representation exist. Yet, to understand why Dayton does envisage a careful calibration between the ethnic groups comprising Bosnia and Herzegovina, and to appreciate the significant risk in the Bundestag resolution blithely sweeping these aside, it is important to look more specifically at what Dayton’s provisions amount to and on what grounds they came to be included in the Accords.
Dayton’s Peace and the Notion of “Constituent Peoples”
While the Bundestag resolution contains much abstract criticism of state structures in BiH, the document in effect omits its central target: the legal role of the principle of “constituent peoples” as it functions within the Dayton provided state structure of BiH. Under this principle, which has been repeatedly affirmed by the Constitutional Court of Bosnia and Herzegovina, Dayton’s provisions for ensuring a balance of Bosniaks, Croats and Serbs being represented in BiH’s state institutions are not (so-to-say) designed willy-nilly. Rather, they represent a fundamental aspect of BiH’s peace and state foundation: that all three of BiH’s main ethnic groups have a co-equal role to play in determining the character of the state. In a classic formulation from BiH’s Constitutional Court:
Even if constituent peoples are, in actual fact, in a majority or minority positions in the Entities, the express recognition of Bosniacs, Croats and Serbs as constituent peoples by the Constitution of B.H. can only have the meaning that none of them is constitutionally recognized as a majority, or, in other words, that they enjoy equality as groups.
As the Court makes clear: the principle of “constituent peoples” has the critical function of ruling out inter-group tensions and clashes over demographic and territorial majorities–the same issues that played such a devastating role in the ’90s.
However, the Bundestag resolution rejects precisely this notion of “constituent peoples”, explicating that “the so-called ‘Principle of Legitimate Representation’ is to be rejected”. Critically, this point stands in direct conflict with the Ljubić verdict of the Constitutional Court of Bosnia and Herzegovina. In its Ljubić verdict, the Court ruled that on some accounts Croat electoral rights have been compromised by electoral weaknesses that require reform. The same recommendation has subsequently been endorsed by the Venice Commission. Still more recently, the European Council stipulated the same electoral reform as a condition on BiH attaining candidacy-status. Yet, even as the Bundestag stresses a number of other legal verdicts that should inform the BiH electoral system, Ljubić remains tellingly absent.
BiH’s “Progress” and EU-Candidacy
Behind the Bundestag resolution’s remarkable opposition to the Dayton Accords and the absence of the Ljubić case lies in fact a systematic and serious explanation. This issue is that the drafters of the resolution view the topics at issue in electoral reform exclusively in terms of various theoretical claims concerning individual electoral rights and emphatically not in terms of diplomatic and security concerns. In a recent interview, an SPD Bundestag member Jasmina Hostert framed her resistance to BiH’s principle of “constituent peoples” as follows: “[this principle] needs to change, so that everything is not divided into three ethnic groups, as it is now. […] It should be a private matter.” Hostert’s point here is that the Bosniak-Croat Federation electoral rules should include no system for powersharing. It should proceed, in effect, as if there were no Dayton Accords.
Crucially, however, this misses the essential aspects of the nature of the Dayton Accords and why they have preserved non-violence in BiH. Precisely this element is vital within the Bosniak-Croat Federation. As the drafters of Dayton acutely realized, the entity shared by Bosniaks and Croats–the Federation–came about as an essential precondition for the military and diplomatic resolution of the war of the ’90s. That is, Holbrooke’s team had pushed Bosniaks and Croats to cooperate and end their 1992-1994 conflict on the American conviction that it was the only way Serb forces in Bosnia could be resisted. As Derek Chollet–advising US diplomats Holbrooke and Strobe Talbott at the time–puts the point in his hallmark study of the diplomatic path to Dayton:
The Clinton Administration believed that for peace to have any chance the Muslims and Croats had to cooperate politically, economically, and most important, militarily. “From our perspective”, Secretary of State Christopher later wrote, “the two sides needed to turn their energies against the stronger and more threatening adversary, the Bosnian Serbs.” […] the Americans believed that the Muslim-Croat alliance was the only chance for the Muslims in Bosnia to develop the resources to balance Serb power.
As Chollet’s description illustrates, it was considerations crucial to the security and viability of BiH as a state that motivated the creation of the Federation and its power-sharing arrangements were created (just as they were subsequently maintained in the Dayton Accords). In this way, the 1994 Washington Agreement in which the Federation was baptized was signed by both the Bosnian and Croatian governments, underscoring the critical buy-in of both states on the security and diplomatic aspects of the Federation. Today, this point remains critical to recall. In rashly abrogating Dayton provisions dealing with powersharing in the Federation, the Bundestag is not simply exacerbating tensions today. More profoundly, the Bundestag resolution is undermining conditions that have ensured non-violence for nearly thirty years.
Equally imbalanced is the stated aim of the resolution: to foster progress in BiH and assist its path into Europe. Ostensibly, this is partly a response to the summit of the Council of EU of June 23rd, in which BiH was skipped over for EU candidacy. However, the EU summit of June 23rd precisely “called on all political leaders of Bosnia and Herzegovina to swiftly implement the commitments set out in the agreement and finalise the constitutional and electoral reform in order to allow the country to advance on its EU path”–language very much pertaining to and including the Ljubić verdict. It is mere irony, then, that the Bundestag resolution in effect directs BiH not to follow the explicit steps that the European Union has set for BiH’s candidacy. But the irony does not end here. While the summit of June 23rd saw pro-Dayton countries such as Croatia, Austria and Slovenia push for EU candidacy being granted to BiH, the German government consisting of the factions behind the Bundestag resolution itself opposed such a step forward for BiH.
In its stance on BiH, the German Bundestag has passed a dangerously imbalanced resolution. The resolution pays lipservice to the thirty years of non-violence provided by the Dayton Accords, but meanwhile, it undermines the system of electoral powersharing that has made Dayton work. The resolution claims to support BiH’s bid for EU membership–in the above interview Hostert says that “we need to distance ourselves from the nationalist forces that are blocking Bosnia and Herzegovina from […] becoming a member of the EU”–but the resolution calls BiH to ignore conditions that the EU Council has stipulated as conditions for such membership, in particular the implementation of electoral reform. In various formulations, the Bundestag resolution bemoans the intervention of foreign countries in the affairs of BiH, but in explicitly rejecting the Dayton Accords, the resolution itself constitutes such a foreign intervention. Misguided and a threat to the stability of BiH, and in particular the Federation, this resolution is best left gathering dust, and the German government would do well to reiterate its support for the Dayton Accords and the peace they have provided in the region.