Bosnia and Herzegovina’s constitutional crisis: Is this time different?

As the situation in Bosnia escalates, Dr Maja Sahadžić, University of Antwerp, gives her take on the long-running constitutional crisis in the region

(Originally published by Center on Constitutional Change , 17th novembar 2021)

The 1995 Dayton Peace Agreement defines Bosnia and Herzegovina (B&H) as consisting of two entities: the Federation of B&H (FB&H) and the Republic of Srpska (RS) (the Entities). While the FB&H consists of 10 cantons the RS is unitary. The Brčko District (BD), a small entity in north-eastern B&H, emerged only in 1999 after an arbitration process. Apart from the Constitution of B&H, the Entities and cantons have their own constitutions/statutes, governments, legislatures, and judiciaries. Importantly, the political and constitutional system of B&H is based on the principle of parity among three ethnic groups designated as constituent peoples - the Bosniaks, Croats, and Serbs (the result of the power balance among the ethnic groups during the Bosnian War, 1992-1995). The principle of constituent peoplehood runs through all layers of the political and constitutional system, with the three groups enjoying guaranteed representation and participation in government, legislatures, and even the judiciary.

Bosnia and Herzegovina is subject to two reinforcing tendencies: (1) Further federalization and (2) centralization, each process provoking fragmentation in its own way. The first tendency corresponds to repeated threats of organizing independence referendums in the RS and calls for the creation of a third, Croatian-majority, entity. The second tendency refers to Bosniak parties’ periodic attempts to establish a unitary system and return to the 1992 constitution. The Bosniaks fear that the present constitutional framework increases the likelihood that RS will break away and that the Croats will achieve more autonomy. At the same time, the Serbs and the Croats fear losing their autonomy to centralizing tendencies. This makes for an uneasy coexistence and mutual distrust, feeding tensions at all levels of government.

Periodically, the RS leadership threatens independence referendums in response to discussions linked to the transfer of powers to the state level. It also opposes B&H’s accession to NATO, and the very existence of state level judiciary. The latest threat to the strained relations among the ethnic communities in B&H and the territorial integrity of B&H comes from the Serb member of the Presidency of B&H Milorad Dodik, and his political party, SNSD.

On 28 October 2021, Dodik unveiled a strategic document containing a long list of demands. The most important among Dodik’s claims are (1) that he will declare the independence of the RS if the powers that have been transferred to the state level are not returned to the RS within six months, especially those regarding the Armed Forces of B&H, the High Judicial and Prosecutorial Council of B&H (HJPC), the Court of B&H, and the Indirect Taxation Authority of B&H, (2) that he will abolish the Intelligence-Security Agency of B&H (OSA), withdraw the consent for the establishment of the State Investigation and Protection Agency of B&H (SIPA), and form similar agencies in the RS within a month, and (3) that he will establish an agency for medical products in the RS (a state-level agency has existed since 2009) based on the law adopted in the National Assembly of the RS in October 2021. The law setting the ground for this has been adopted on 20 October 2021, although the RS opposition boycotted the adoption. His earlier plans have also included (4) abolishing a large number of decisions of the High Representatives in B&H in the National Assembly of the RS.

This political adventurism has caused quite an uproar in Bosnia and Herzegovina, across the region, and internationally. However, Milorad Dodik has called for secession so many times so far that politicians, legal experts, and diplomats, have oscillated between the thinking: “This is yet another one!” and “This time it is serious!”. It is hard to tell the difference between the gravity and frivolity of the situation since the chain of events has included solemn threats of secession and war, but also an invitation of a folk musician to entertain guests at the Presidency of B&H, an off-the-cuff remark that war is unlikely since the three sides in Bosnia are so broke that they could only wage it by throwing chestnuts at each other, and other embarrassing statements from political leaders of all three constituent peoples, as well as the presidents of neighboring Croatia and Serbia.

The recovering of powers previously transferred to the state level, the abolition of laws and decisions that have been adopted at the state level or by the OHR by the National Assembly of the RS, and appropriation of state powers, are three mutually connected legal issues linked to the division of powers in B&H. 

In B&H, the state level occupies narrow exclusive powers while the Entities occupy vast residual powers. The Constitution of B&H leaves all powers and functions that are not expressly assigned to the state level to the Entities (Article III 1.). According to the Constitution (Article III 5.a)), the state level is entitled to assume additional powers over the matters necessary to preserve the sovereignty, territorial integrity, political independence, and international personality of B&H respecting the distribution of powers and mutual agreement of the Entities. In other words, transferring powers from the Entities to the state level is possible, though it requires the mutual agreement of both the FB&H and the RS (Article IV 4.d)). For example, until 2005 there were two armies on the territory of B&H, the Army of the FB&H and the Army of the RS. To establish one army for the entire territory, powers needed to be transferred from the Entities to the state level. Surprisingly, in 2006 an agreement between the Entities was reached about establishing unified armed forces at the state level and the Armed Forces of B&H were formed.

Nevertheless, the Entities, especially the RS, have not been keen on transferring the powers to the state level. Unlike in the RS, in the FB&H, the transfer of powers has been complicated by the fact that the FB&H applies different techniques in the allocation of powers (exclusive and shared) between the FB&H and the cantons. As a result, other than the powers linked to defense policies, only a handful of other powers have been transferred to the state level, including those disputed by Milorad Dodik: the Armed Forces of B&H, OSA, SIPA, HJPC, the Court of B&H, Value Added Tax (VAT), etc.

Over time, starting around 2006, the state level has introduced the so-called “parallel competences” aimed to establish policies and principles in certain fields, such as the framework laws on primary, secondary, and higher education. Since the Serb elites fear weakening the RS, they have continually objected to transferring powers from the Entities to the state level. To enable some form of coordination, the Office of the High Representative of B&H (OHR) (created in 1995 to supervise the implementation of the Dayton Peace Agreement - can adopt and enforce decisions when there is a deadlock in decision-making) imposed decisions which transferred powers to the state level. Examples include the laws that established the HJPC and VAT. Even then, the laws have been adopted in the Parliamentary Assembly of B&H. Still, because of the manner in which the OHR established these institutions, the RS has vehemently opposed the continuing existence of the Court of B&H, the Prosecutor’s Office of B&H, and the High Judicial and Prosecutorial Council of B&H.

On the one hand, from a purely constitutional standpoint Dodik’s claims are fairly easily dismissed. There is no legal possibility for a lower level of government to decide on the laws adopted by a higher level of government. The Entity legislatures - in this case the National Assembly of the RS - cannot amend or abolish the laws adopted by the state legislature - the Parliamentary Assembly of B&H. The RS Assembly can not unilaterally repeal, among others, the Law on Defense, the Law on the Intelligence Agency, etc.  Those laws can only be amended or repealed in the Parliamentary Assembly of B&H since that is the body that adopted them. By the same token, the laws imposed by the OHR can be amended or abolished only by the OHR and the Parliamentary Assembly of B&H. In other words, the RS can legitimately challenge the laws in the Parliamentary Assembly of B&H, though it is unlikely to win those challenges there. Another option would be to challenge the laws adopted by the Parliamentary Assembly or the decisions of the OHR via constitutional review before the Constitutional Court of B&H.

However, there is a complicating twist to the story. Whether and how the Entities can recover the transferred powers raises a question mark since the existing constitutional design of B&H does not foresee a procedure for this. There are no constitutional provisions that treat this aspect. One could argue that if a mutual agreement is needed to transfer the powers, the same requirement would be in place to recover the powers. Nevertheless, under the present circumstances, any initiative to recover ceded powers without a constitutional or legal basis is a dangerous one.

One thing is certain: the Entities have transferred the powers in accordance with the Constitution of B&H or by the imposition of the OHR, and those powers cannot be unilaterally derogated by entity laws or by withdrawing a signature. As mentioned above laws that transferred powers from entities to the state can only be amended by the Parliamentary Assembly of B&H. The Entities indeed have broad constitutional powers. That might be the reason why the political leadership of the RS feels entitled to pursue the steps it wishes to pursue. However, the Constitution of B&H defines that the Entities and their subdivisions have to fully comply with the Constitution and ensure the conformity of their law with the Constitution of B&H (Article III 3.b) and Article XII 2.).

The most problematic part, however, is not legal, but the political one. Maintaining a delicate equilibrium in B&H is a rather intricate task. It requires a set of skills that political leaders in B&H do not seem to possess. Devolutionary aspirations based on sub-national constitutionalism in B&H only seem to survive because of the divisive political narratives. Inflamatory rhetoric is almost certainly not meant to restart armed conflict. However, none of the political dilettantes that engage in it seem to be  aware of how potentially dangerous it can become. For the RS, it helps that it is organized as a single territory and populated by predominantly one constituent people, the Serbs. It also helps that the political leaders in the RS, regardless of their political affiliation or the political program they represent, are unanimous about the autonomy of the RS. They build political narratives around the Constitution, powers and competences, and institutions of RS.

The only reason why we see a stark difference in the FB&H is that it is split into cantons and is shared between Bosniaks and Croats, each with different aspirations. This is why the Bosniak political parties tend to be influential at the state level where they promote their centralizing aspirations. A lack of territorial and institutional recognition of the Croats results in their inferior position within the system, but even then, Croat political leaders have been vocal only about the absence of the “third” or “Croat” entity, but not necessarily about having their own constitution. This helps political leaders of all three ethnic communities to create daily political narratives about autonomy or centralizing claims. How the latest independence saga will finish is hard to predict as its outcome depends on the power balance in B&H. Yet, everything that Milorad Dodik announced, though legally unfounded, may still happen.