Meaningful and Comprehensive Constitutional Reform – The Way Forward in Bosnia and Herzegovina

Meaningful and Comprehensive Constitutional Reform – The Way Forward in Bosnia and Herzegovina

In the past week, the Congress of Bosniaks of North America (“CBNA”), together with several other non-governmental organization and community partners contacted the U.S., Secretary of State and 42 U.S. legislators serving on the Senate Foreign Relations Committee and House Committee on Foreign Affairs, calling on U.S. support to solve the dire political situation in Bosnia and Herzegovina (“Bosnia”).

The letters explained that while the Dayton peace agreement successfully ended the aggression and war in Bosnia, it also created a complex framework of governance that protects the rights of constituent ethnic groups, instead of all of its citizens. This has resulted in numerous undemocratic and discriminatory outcomes, including that no member of any minority ethnic group (whether Jewish, Roma, Albanian, Montenegrin or otherwise) can ever hold political office at the state or entity level or get elected to the House of People. Ironically, even citizens who declare themselves as Bosnians cannot run for office in any of the above-mentioned levels of government. Only members of constituent people, namely Bosniaks, Serbs and Croats, can be elected to those offices in government.

The above mentioned provisions of the Dayton peace agreement have led to further ethnic divisions and were challenged in European courts on numerous occasions. Over the years, the European Court of Human Rights has ruled 395 times against these provisions, but such rulings have never been implemented by the state or entity level governments.

In addition, the recent enactment of a law prohibiting genocide denial and the glorification of war criminals led to the complete withdrawal of Bosnian Serbs from all state-level government institutions. Emboldened by Russian and growing Chinese support and influence in the region, these actions, along with inflammatory nationalist rhetoric, have created a political crisis that is pushing the country to the brink of another full-scale armed conflict.

The letters emphasized that the only viable course of action to avoid further division of the country is to adopt meaningful and comprehensive constitutional reform based on democratic principles of government. The previous failure of special envoy Matthew Palmer of the U.S. State Department and Ms. Angelina Eichhorst of the European External Action Service to resolve the political crises highlight the fact that a “band-aid” or “piece-meal” approach – instead of a comprehensive one – to solving constitutional problems will only deepen the existing crisis and has the potential to quickly escalate into another armed conflict with global implications.

The letters further highlighted the importance of the guiding principles put forth by a number of Bosnian non-governmental organizations (“NGOs”), which include Croatian National Council, Serbian Civic Council, Council of the Congress of Bosniak Intellectuals and Parliamentarians Forum. The six guiding principles put forth by these organizations should in our opinion be the foundation for any meaningful and comprehensive constitutional reform process in Bosnia. The six principles are:

  • The elimination of systemic and systematic discrimination in the political and electoral system. The judgments of the European Courts oblige the state to remove existing widespread discrimination;
  • The cessation of entity-based voting and elimination of ethnic veto provisions, as per findings and recommendations by the Venice Commission;
  • Reform of the judicial system to ensure independent courts based on the rule of law, who operate with the same principles, rather than separate systems which often reach conflicting rulings;
  • Sanction the denial, trivialization, justification or condonation of the Holocaust, genocide and crimes against humanity;
  • Define the rights considered to be of vital national interest and that would be protected by the national veto at the state and lower levels of government; and
  • The dismantling of the various layers of government which lead to the weakening of state-level governmental institutions and create political and legislative gridlock.

The letter urged the U.S. Secretary of State and U.S. legislators to send a team of legal experts to Bosnia to work on meaningful and comprehensive constitutional reform, rather than any limited or partial solutions such as limited electoral reform. The letter stressed the importance of decelerating the haste to simply implement electoral reform at the expense of other key constitutional provisions that require revisions. Any constitutional amendment process should be comprehensive, deliberate and must include input from a wider cross section of Bosnia’s citizens, including members of academia, experts from diaspora and various NGOs, rather than just the political representatives from the three main ethnic parties. Given these asks, we were glad to see Ms. Samantha Power planning to do just that, in a recent official press release published by U.S. Aid.

Bosnia and all of its citizens, regardless of ethnicity, deserve a prosperous country that is governed peacefully based on democratic principles and free of external interference. This is why meaningful and comprehensive constitutional reform that protects Bosnia’s sovereignty, territorial integrity, and the rights of ALL its citizens is the only viable option that will put Bosnia back on the path of membership in NATO and the European Union.