IMPOSING CHANGE INSTEAD OF CREATING LOCAL OWNERSHIP
In the aftermath of the Constitutional Court’s ruling, constitutional commissions for each Entity were created in January 2001 and charged with drafting amendments complying with the Court’s ruling.
But there was virtually no progress, and a series of deadlines set by the High Representative were missed by both Entities. After negotiations called for by the High Representative, an agreement on the principles of the Court decision that the parties would comply with was finally reached in March 2002, although it was not signed by all parties. In the end, the High Representative imposed three decisions in order to bring the two Constitutions fully in line with the Court ruling.59In essence, the agreement and the imposed constitutional amendments recognized Bosniaks, Croats, and Serbs as constituent peoples in both Entities. The institutional diversity within the Entities was reduced, as an upper house was created in the Republika Srpska, as well as two vice-presidential posts in each Entity for the representation of all three constituent peoples, with a requirement that those occupying the three offices should come from different constituent peoples. The agreement defined “vital interests” – examples include education, religion, language, culture, the promotion of tradition, and equal representation in government institutions – and the procedures to protect such interests. This detailed elaboration of the vital-interest clauses was intended to limit their abuse for the sole purpose of obstruction. Finally, the constitutional principle of proportional representation for all ethnic groups in public institutions, i.e., in ministries at the Entity, cantonal, and municipal levels, as well as in the courts within both Entities, was introduced.
The main principle of the imposed amendments can be described as symmetry in substance: most important is the identical level of protection throughout the country, which is not necessarily to be achieved by identical mechanisms, a reasonable approach in the face of a political elite in both Entities in profound disagreement over the issue of mechanisms.60
In order to further strengthen the government of the State, in December 2002 the High Representative also adopted a decree that reformed the Council of Ministers, ending the rotation of its chairmanship, introducing a four-year term corresponding with the legislature, and establishing two new ministries (Justice and Security).
The Constitutional Court confirmed its orientation regarding the multinational organization of the country at all levels of government in further important decisions on place names, symbols of the Entities, and so on.61 While these decisions apply the principle of institutional and collective equality of the constituent peoples in order to avoid any discrimination or the creation of ethnic homelands, they do not sufficiently consider the individual rights of those who are not affiliated with one of the three major groups and thus find themselves excluded from a number of offices that are reserved to members of one of the three groups. Since this exclusion is in conflict with the guarantees of the European Convention of Human Rights and Fundamental Freedoms, which is the highest source of law in Bosnia (article II.1), it raises important questions about whether Bosnia is actually a State of all of its citizens, independently of their affiliation with particular ethnic groups, and whether this precedence of collective guarantees over individual rights can be justified. Although some attempt to recognize the rights of “Others” has occurred – at Entity level the constitutional amendments of 2002 reserved some seats in the House of Peoples for “Others” – a complaint to the European Court of Human Rights (ECtHR) has been filed challenging the continuing reservation of many other offices and positions to members of the three constituent peoples.62 On 22 December 2009 the Grand Chamber of the European Court of Human Rights applied the far-reaching general prohibition of discrimination in Protocol No. 12 to the European Convention of Human Rights to electoral discrimination based on ethnicity in Bosnia’s post-conflict society. The implementation of the Court’s judgment requires an amendment to the Bosnian Constitution.63
The frequent and wide use made of the Bonn Powers by the High Representative also included reforms of the judiciary (with the establishment of a State Court and of a High Judicial and Prosecutorial Council), of defence (with the imposition a merger of forces into one army and the creation of a ministry of defence at the State level), of the Council of Ministers, and so on, all aimed at strengthening State institutions.
A Mission Implementation Plan adopted by the Peace Implementation Council in 2003 provided the basis and the priorities for these “corrections,” which were, however, established without consultation with or participation by Bosnian politicians. In addition to creating resistance by local elites and frustration among the citizens, these measures triggered an intense debate on the legitimacy of the international semi-protectorate, raising the question of the accountability of the International Community.64 The Constitutional Court denied that it had authority to control the exercise of the extraordinary Bonn Powers, but it emphasized that measures not originating with domestic actors had to be adopted in conformity with the Constitution. For these reasons, the International Community has rightly been referred to as the “fourth constituent” element in Bosnia and Herzegovina.65