As BiH marks 20 years since the Dayton Accords, everyone in BiH should celebrate the Accords and the era of peace that they launched. But the full promise of the Dayton Accords has not been realized because the political system laid out in Annex 4 of the Dayton Accords (the BiH Constitution) has in very fundamental ways been flouted in an attempt to create a unitary, centralized system of government that favors one of the three Constituent Peoples to the detriment of the others. BiH can build a sustainable, European future only after it faithfully implements the structure agreed to by the parties to the Dayton Accords.
It is important to recognize that the Dayton Accords did much more than end BiH’s terrible civil war. The Accords, through the BiH Constitution, provided for a sustainable political system for BiH. That system is sustainable because it is built on an understanding of BiH’s political reality, especially the presence of three peoples with great historical distrust for one another. The Constitution provides for BiH’s sustainability in two principal ways. First, the Constitution enumerates a list of specific BiH-level powers and leaves all other powers to the Entities. Second, the Constitution provides structural and procedural protections for each of BiH’s three Constituent Peoples, to prevent any one People from dominating another.
Unfortunately, in the years since Dayton, the High Representative and BiH’s Bosniak parties have often disregarded the careful Dayton design, resulting in today’s dysfunctional BiH. The BiH Constitution’s strict limitation of BiH-level competencies promotes functionality by minimizing the decisions required at the most contentious level of governance. But the High Representative’s forced centralization of competencies at the BiH level sabotaged the Dayton structure. By requiring decisions to be made at the most contentious possible level, centralization has maximized BiH’s discord and dysfunction and let to incredible government waste.
The High Representative centralized BiH through the use and threat of a completely fictitious set of powers to impose laws and constitutional amendments and punish individuals by decree. As former UK Ambassador Charles Crawford—who helped invent these so-called “Bonn Powers”—has admitted, “the Bonn Powers had no real legal basis at all.” Despite the manifest unconstitutionality of the High Representative’s centralizing laws, the BiH Constitutional Court rubber-stamped them; a former judge of the Constitutional Court later admitted that there was a “tacit consensus between the Court and the High Representative that the Court . . . will always confirm the merits of his legislation.”
The unconstitutional centralization of BiH has turned the BiH level into what the International Crisis Group calls “a zombie administration, providing full employment to civil servants but few services to citizens.” In addition to creating a bloated and dysfunctional level of governance, centralization has undermined the rule of law and deteriorated safeguards for BiH’s Constituent Peoples.
To restore the rule of law and realize BiH’s potential, it is essential that BiH enact significant reforms to implement the political system envisioned in the Dayton Constitution. Reforms are needed that focus on laws and institutions that are inefficient, ineffective or inconsistent with the BiH Constitution and political structure it sets forth, and that protect political, civil, and human rights.
Perhaps the most important area in need of reform is the justice system imposed on BiH by the High Representative, which is deeply inconsistent with European standards. Four years ago, the RS agreed to the EU proposal to pursue judicial reforms through an EU-sponsored Structured Dialogue on Justice. EU experts agree on the necessity of reforms to laws such as the Law on Court of BiH. However, self-interested BiH judicial institutions have been fiercely resisting these essential reforms. After four years, not a single reform has resulted. This summer, the RS determined, as part of its efforts to seek reform, to hold a referendum that will gauge citizens’ views about the laws imposed on them by the High Representative, including the laws that established the BiH Court and Prosecutor’s Office. This reform effort has been challenged by the High Representative in a Special Report to the UN Secretary General. The RS in turn sent a Response to the Special Report, which describes why the High Representative’s Special Report exceeded his authority and why the referendum is protected by the BiH Constitution and Dayton Accords as a legal means to promote important reforms.
BiH’s decentralized constitutional system is fully consistent with EU membership, as EU Special Representative Lars-Gunnar Wigemark emphasized in a recent interview. When Ambassador Wigemark was asked whether reforms on the European path require centralization, he replied, “No, absolutely not!” He added, “Joining the EU, or integration into the EU, does not mean more centralized BiH. There are many Member States that have decentralized systems and decentralized structure.”
Of course, in order for BiH to move toward EU membership, it must become a fully sovereign and democratic state. That means the High Representative’s role in BiH—especially his asserted right to rule by decree—must come to an end.
The Dayton Constitution provides for a sustainable and functional political system. The political realities that the Constitution was so carefully designed to address are still present. BiH is dysfunctional today because the Dayton system has been so badly undermined by the High Representative through centralization and abuses of the rule of law. Twenty years after the Dayton Accords, it is past time for BiH to implement the Dayton system faithfully.
