Misuse of the European path of BiH for the purpose of undermining key state institutions — the Presidency and the Constitutional Court

[Presentation at the regular session of the Association of Independent Intellectuals “Krug 99", February 11, 2024, Sarajevo]

Dear President Kulenovic,

Thank you for the invitation. It is a special honor for me to address this distinguished gathering. Krug 99 makes an extremely important contribution to the public debate about the key issues for our society and the state of Bosnia and Herzegovina.

I’ll use this opportunity to talk about etiology of the Constitutional Court and Presidency of BiH, in relation to the current discussion about the “reform” of these two key institutions.

Dissolution of the state or ethnic division of power

Before the signing of Dayton, Alija Izetbegovic told William Perry (then US Secretary of Defense) that he do not want to sign an agreement with the Bosnian Serb regime, because they are like Nazis, as he said, and peace should be imposed on them, as was done in Germany after World War II.

Perry said that, unlike the Allies in World War II, the Bosnian Army did not defeat the Bosnian Serb Army and therefore “occupation” similar to that in Germany after WW2 is not an option.

This was the dominant mood within the Clinton administration: the Americans were not ready to spend their resources to make BiH a civic state, but only to stop the war. (That was fair enough.)

This was already clear in August 1995, when Richard Holbrooke came to Sarajevo for the first time, as the chief American negotiator. He said that he needs a very clear answer about what the Bosnian Government wants (considering that it cannot liberate the country by military means).

As Izetbegovic records in his “Memories”, Holbrooke then said:

“You can have: either 1. a unified, but decentralized Bosnia, or 2. a part of Bosnia where you will rule exclusively. Which of the two do you want?”

A unified state with ethnically undivided government was not on the table at all.

As is well known, our leadership rejected the division of the country (that is, for Serbia and Croatia to annex parts of the territory they controlled).

Izetbegovic and other Bosnian leaders accepted ethnic division of power.

But that was not the end, but only the beginning. A struggle about the details of the constitutional arrangement followed. Very quickly it became clear that the ethnic division of power does not exist as such, but that it can be to a lesser or greater degree.

The essence of the struggle in Dayton, as it is today, was precisely this: to what extent the ethnic principle will matter.

How the Constitutional Court was created

A few days ago, one of the authors of the Dayton Constitution and current US Assistant Secretary of State Jim O’Brien visited Sarajevo.

His very important address caused enormous attention in our country.

I will use this opportunity to further illuminate the essential messages of that address.

I will do this by drawing attention to one of O’Brien’s texts, less known to our public, in which he speaks in an even more open language (probably because he did not hold such a high diplomatic post).

It is an analysis of The Dayton Constitution of Bosnia and Herzegovina, published by the United States Institute of Peace.

According to O’Brien, one of the key questions he and his colleagues faced when drafting the Dayton Constitution was how to resolve potential disputes between the entities.

He explains that “in September 1995, the Serbs insisted that all disputes would be resolved between the Entity governments, and this proposal was included in the principles for the negotiations announced in Geneva and New York”.

However, as O’Brien writes, a change took place in Dayton, and O’Brien emphasizes that according to the Dayton constitution “the Entity and other substate levels of government are subject to decisions of the Constitutional Court”.

As O’Brien says: “The establishment of the Constitutional Court and the judicial system as a whole struck at a central assertion from earlier in the negotiations, made most often by Bosnian Serbs, that the Entities were to be final arbiters of questions about whether international or domestic legal obligations were being met.”

“Once the parties,” continues O’Brien, “agreed at Dayton on a judicial system in which individuals could bring cases directly against governments, and in which a central court system would have the authority to review Entity decisions, the [Bosnian Serb] proposal lost most of its purpose.”

(The idea of ​​forming the Constitutional Court was provided by Lloyd Cutler, legal adviser to President Clinton and President Carter. I found this information in The Secert History of Dayton written by Derek Chollet and Bennett Freeman.)

If the idea that, instead of the central instance — i.e. the Constitutional Court, the entities resolve all disputes, was accepted, Bosnia and Herzegovina, concludes O’Brien, would be “a union from a feudal age, not a modern European state”.

Pointing out the reasons for the aforementioned turn, he says: “Milosevic sought an end to economic sanctions on the Federal Republic of Yugoslavia; he was not very interested in the details of Bosnia’s governance”.

***

Unlike Milosevic, the delegation of the Republic of Bosnia and Herzegovina in Dayton was very careful and well prepared when it came to the structure of the Constitutional Court.

While I was reading the documents about the negotiations on the eve of Dayton, my impression was that the Americans and the Bosnian Government worked in collusion.

Namely, not long after the American legal team (more precisely, Lloyd Cutler) came up with the idea of ​​establishing the Constitutional Court, as a key Dayton instance, which will resolve inter-entity disputes, the SDA Executive Board published conclusions in which a similar view of things is presented.

In the aforementioned conclusions of October 20, 1995 (quoted by Alija Izetbegovic in his “Memories”) it is said:

“In the situation as it is and considering the likely parity composition of joint bodies, the basic problem is the possibility of blocking the functioning of joint institutions by using the veto.”

Then it continues: “We need (1) a unified Bosnia and (2) a state that can function. It seems that these two requirements are contradictory and before us is the question of how to resolve this knot.”

And then the following answer is proposed: “The way out may be in the installation of an de-blocking mechanism. That would probably be the Constitutional Court, which, in this case, would also include several foreign judges.” (My underlining)

At the end, the author of the conclusions lucidly observes that “the way of decision-making and the possibility of blocking decision-making remains the most serious issue for Bosnia as a complete state”.

Even after 28 years, this assessment has not lost its validity.

***

It is indicative that, as soon as Dayton was concluded, the current president Aleksandar Vucic, then the general secretary of the SRS, published a fierce criticism of the agreement and Miloševic’s role.

Vucic strongly resented Milosevic for accepting that Republika Srpska will not have the right of veto in the Constitutional Court.

Even then, Vucic notes that “since decisions are made by majority vote, in practice it would be enough for only one European judge to join the members elected in the Federation, so that a verdict is passed against the interests of the Serb side. And the court, moreover, is given the right to decide how legal any attempt by Serbs from Republika Srpska to form a confederation with Serbia is.” (My underlining)

Almost three decades after Dayton, although he declaratively accepts all its provisions, Vucic still regularly challenges the presence of judges of the Constitutional Court, which perhaps better than anything else indicates how important the victory, which the pro-Bosnian forces, with the help of the Americans, achieved on this issue in Dayton.

***

Milan Blagojevic, former legal advisor to the member of the Presidency Zeljka Cvijanovic, recently reminded of the omissions of the Serbian Dayton delegation in relation to the Constitutional Court.

Regarding the RS authorities’ claim that the Constitutional Court cannot function without judges from that entity, Blagojevic reminded the public in Republika Srpska that, according to the Constitution, a simple majority of judges in the Constitutional Court constitutes a quorum.

“Nowhere is it said that the Constitutional Court of Bosnia and Herzegovina cannot work if all its judges are not appointed. If the delegation of the RS in Dayton insisted on this, and it could only if it wanted to, then it would have been written in the Constitution of BiH that the Constitutional Court must have all judges to be able to work, or that the quorum consists of all the judges of that court. Unfortunately, the Serbian side in Dayton did not ask for that”.

BiH Presidency

Along with the aforementioned, O’Brien says in his analysis that, taking into account the experiences from the Yugoslavia, all parties in Dayton agreed that the Presidency should be multi-member.

The first dilemma was whether the members of the Presidency would be elected directly or indirectly.

As Alija Izetbegović writes in “Memories”, at one point, on the eve of the actual negotiations in Dayton, the American delegation, led by the current US Ambassador to Belgrade Chris Hill, agreed to Miloševic’s request that the Presidency be delegated and not elected.

“We,” says Izetbegović, “insisted on direct elections for the Parliament and the Presidency, the other two parties on indirect elections. Obviously, different political philosophies were behind these attitudes. Serbia and Croatia wanted a weak head of state, we wanted a strong one.”

In the end, the Bosnian side’s request that the elections be direct was accepted.

Another dilemma was whether the Presidency would have three, six or nine members.

As Daniel Serwer recently recalled in a podcast, the Croatian delegation requested that the Presidency be made up of three members (a Bosniak, a Serb and a Croat).

The Croatian delegation, without a doubt, calculated that if there were three members, and not six, it would be understood that each of them represented one constituent nation.

Jim O’Brien says clearly that members of the Presidency in Dayton are not intended as representatives of the three constituent peoples.

He even offers precious testimony that “various parties” already in Dayton requested that the election of the members of the Presidency be arranged in the way HDZ BiH is requesting today, but that it was not accepted in Dayton.

In order not to paraphrase, I will quote O’Brien: “Various sought additional guarantees, including a demand that each member of the presidency be elected by a caucus of the largest party connected with each ethic group.”

In other words, that the election of a member of the Presidency is confirmed by the clubs of Croats, Serbs and Bosniaks in the House of Peoples, as HDZ BiH has repeatedly proposed.

“Given the dominance of the nationalist parties,” says O’Brien, “and the few non-nationalist parties’ rejection of explicit ethnic group affiliation, this arrangement would have locked the presidency into nationalist control. International negotiators, however, rejected this last proposal as incompatible with the agreement negotiated under international auspices and purpoting to establish a democracy.” (My underlining)

In addition to the above, in his analysis O’Brien recalls that the Dayton Constitution (in Article 10) explicitly prohibits any changes that would reduce the level of rights derived from European and other international conventions that protect human rights.

In Dayton, therefore, it was determined on purpose that one of the members of the Presidency would be a Croat, but it was also determined on purpose that Croats do not have to elect him.

The case of Zeljko Komsic is not a fraud, but a natural possibility enabled by Dayton and accepted by all delegations, including the one headed by Tudjman.

In the end, O’Brien’s explanation was confirmed by the Constitutional Court (in the III partial decision in case No. U5/98), saying that a Serb in the Presidency “does not represent the Republika Srpska as an entity, nor the Serb people only, but all the citizens of the Republika Srpska electoral unit. The same also holds for the Bosniac and Croat Members to be elected from the Federation”.

European path

O’Brien says, in his analysis, that the authors of Dayton had in mind that state institutions will have additional importance when Bosnia and Herzegovina embarks on the path of European integration.

As Bosnia and Herzegovina entered into stronger relations with the European Union and the NATO alliance, the Presidency of Bosnia and Herzegovina, as an institution in charge of foreign policy, gained more and more influence. And it was precisely these integration processes that were the catalyst for the expansion of the Council of Ministers, which was expanded from three initial cabinets to 10.

However, during the past decade, and especially during the past five years, there has been a sudden change. European integration began to be used by SNSD and HDZ to undermine the state.

The key events in this regard were: the annulment of Lajcak’s amendments, which were followed by the signing of the Interim Agreement on Stabilization and Association; and the departure of foreign judges and prosecutors, after Milorad Dodik’s political agreement with the then EU Commissioner for Foreign and Security Affairs, Catherine Ashton, on the initiation of a “structured dialogue”.

The culmination of this process takes place in this mandate, when the SNSD and the HDZ try with all their might to present their demands for changing the structure of the Presidency and the Constitutional Court as an obligation on BiH’s European path.

The leader of the HDZ, Dragan Covic, persistently claims that the amendment of the Electoral Law, in connection with the method of electing members of the BiH Presidency, is an obligation on the European path.

SNSD leader Milorad Dodik also persistently claims that the departure of foreign judges from the Constitutional Court is an obligation on BiH’s EU path.

From the aforementioned analysis, we see that such “reforms” of the Presidency and the Constitutional Court would fundamentally change the Dayton constitutional structure. And not for the better, but for the worse.

By amending the Election Law, the HDZ would not only change the method of electing members of the Presidency, but also their purpose. They would no longer have the obligation to represent all citizens (as envisaged in Dayton, and as the Constitutional Court described their task), but would have the obligation to represent only one constituent nation at a time, which would lead to further ethnic disintegration and produce additional tensions in society.

Furthermore, if the regime in Republika Srpska succeds to shape the Constitutional Court according to its will, i.e. to subordinate it to the will of the entities — that would destroy the essence of the Constitutional Court, as it was conceived in Dayton, as an instance that is superior to the entities.

The Constitutional Court, which is now the most functional state institution, would become similar to the House of Peoples of Bosnia and Herzegovina, whose work could be blocked whenever the ruling coalition in Republika Srpska wanted it. This would have fatal consequences for the constitutional system and the Dayton Peace Agreement.

I believe that this is precisely why Jim O’Brien reacted fiercely to the Laktasi agreement.

I believe that it was a big defeat that the pro-Bosnian side, in the negotiations in Laktasi, agreed that the Presidency and the Constitutional Court should be the subject of negotiations at all.

If the Presidency, as we have it, and the Constitutional Court, as we have it, were agreed upon in Dayton, then there can be no negotiations on that.

Let’s remember on this occasion, when SDA announced a review of the name Republika Srpska before the European Court of Human Rights in Strasbourg.

It was said by the US, EU, RS, and in Sarajevo by certain commentators, that the name “Republika Srpska” is a Dayton category and should not be questioned.

It was emphasized that Alija Izetbegovic agreed to that name.

Let’s accept that argument. Alija Izetbegovic signed the name of RS. But he also signed the Presidency, as it is now, and the Constitutional Court, as it is now.

Tudjman also signed it. And Milosevic.

If the pro-Bosnian side is ready to swallow the name of Republika Srpska, as well as many similar things, then let SNSD and HDZ learn to live with the Presidency and the Constitutional Court, as they are.

European Union and USA

I think that the European Union, specifically the European Commission and the EU Delegation in Bosnia and Herzegovina, is co-responsible for this development of events.

In 2019, the European Commission included a very clumsy wording in its 14 priorities. Or was she not clumsy at all?

In the Opinion of the EC, measures were then requested in order to — I quote — “ The issue of international judges in the Constitutional Court needs to be addressed”.

What does “addressing the issue of international judges” mean?

This does not mean their departure, because if they had asked for their departure, it would have been written “the departure of foreign judges”.

Why doesn’t the EU say it loud and clear?

In the Dayton Agreement itself, it was said that the Parliamentary Assembly could adopt a law, which would define a different way of electing European judges in the CC of BiH.

However, this should not be done in a way that would allow Dodik to gain political control over the appointment process. Let’s imagine that he can stop the appointment of European judges, as he currently stopped the appointment of judges from RS.

Through the ambiguity of its wording, the EU is fueling Dodik’s attacks against the Constitutional Court.

The same is the case with Covic’s requests for changes to the Election Law.

One of the 14 priorities is the implementation of the Sejdic-Finci judgment, which does not at all problematize the method of electing members of the Presidency and does not request its change.

But the EU constantly allows the HDZ to misinterpret the essence of this verdict, and presents its demands as one of the EU’s priorities.

In contrast to the EU, the US administration has a very clear pro-trade and pro-state position:

- As O’Brien clearly stated: the USA does not support the departure of foreign judges from the Constitutional Court, and emphasizes that their presence enables BiH to approach European standards.

- As the US Embassy in BiH clearly stated: the HDZ BiH proposal to create a permanent second list for the election of a member of the Presidency, linked to a specific ethno-territorial electoral boundary within the Federation, would not be in accordance with the judgments of the European Court of Human Rights

I am not sure if our political elites are aware of the danger of the situation.

Thus, the responsibility of the intellectual community becomes even greater.

We must fully support the American position when it comes to the defense of key state institutions, so that they are not undermined by manipulative and misinterpretation of BiH’s obligations on the European path.

The opening of negotiations with the EU should be done in a normal way, and not through the destruction of state institutions, which did not fall from the sky, but were fought for with great difficulty.

Thank you.