THE DEPENDENCE OF INTERNAL CHANGE ON COORDINATED EXTERNAL SUPPORT

According to George Schoepflin, “States require cohesive ideas and identities to legitimate themselves.”⁸⁰ He is referring to the lack of such ideas and identities, which facilitated the breakup of Yugoslavia in the 1990s, but his statement could also be applied to Bosnia-Herzegovina today.

Currently, Bosnia remains an “assisted State” with dysfunctional institutions and an “ethnic democracy” that does not guarantee equal rights and benefits to all citizens. In order to be integrated into the European Union, it has to become a “normal,” i.e., democratic and unified, State.

The aim of peacefully living together in a multiethnic society and integration into a multinational constitutional order require changes to the democratic principle (in its narrow sense). These changes in favour of groups and respect for ethnic diversity must not, however, limit individual rights disproportionately nor question or challenge the very foundations on which the multinational system is built upon, i.e., the equality of its citizens, the equal standing of groups, and loyalty towards the common institutions. In making its choices and shifting these balances, Bosnia will continue to need support from the International Community, as well as from the European Union.⁸² The process of establishing a viable multinational State has to start with the implementation of the judgment of the European Court of Human Rights in the Sejdić-Finci case, which requires a constitutional amendment aimed at ending the discrimination against “Others.” This would emphasize the importance of “civic” elements and individual rights as counterweights to ethnicity.

At the beginning of 2009, after only one and a half years, the High Representative Miroslav Lajcak unexpectedly resigned from office, after being nominated as foreign minister of Slovakia. Also unexpectedly, the leaders of the three major parties (the Bosniak SDA, the Serb SNSD, and the Croat HDZ), in what was known as the Prud Process, agreed on constitutional amendments that recognized that Bosnia-Herzegovina was a decentralized country with four territorial units, as opposed to the current three territorial units.

The parallel crisis looming in the FBH has recently become more acute and mirrors all the problems present at the level of the State. The need for reform of the FBH is evident: its fragmented and dysfunctional administrative system and continuous disputes among and between Bosniak and Croat leaders has brought the Entity close to bankruptcy and caused social unrest. While constitutional reform at the State level does not seem feasible, reform of the FBH might be achievable and provide an impetus for state-level reform: “a well-functioning Entity would be more attractive to Bosnian Croats and Serbs and would be more convincing in negotiations with RS at the State level.”⁸⁵

So far, the Entities as constituent units have predominantly tried to block any change, since they understand themselves as “ethnic homelands.” Only by international imposition have their (pre-existing) constitutions been amended in order to reach conformity with the State Constitution and the multinational system of Bosnia-Herzegovina. If a viable multinational federal State is to be built, the exclusive identification of territory with one of the three constituent peoples has to be ended (the necessary introduction of civic elements in favour of “Others” could be useful in this regard).

Bosnia remains a construction site, but the paradoxes in the plans for building a viable multinational federal State have been clearly identified. Although they will have to be resolved by domestic forces, international assistance on the way to compromise and agreement will be crucial owing to the distance separating the various positions, the extent of change that is required, and the lack of experience in change from the bottom up.

1 In the following the abbreviated forms “Bosnia “or “BiH” will be used to refer to the State of Bosnia and Herzegovina.

2 Bosnia and Herzegovina was rightly described as a “Yugoslavia in miniature” on account of its demographic structure: in the last census, 1991, Muslims (to use the Yugoslav terminology, which since the 1990s has fallen into disuse in favour of “Bosniaks”) made up 43.7 percent of the population, Serbs 31.45 percent, and Croats 17.3 percent, while 5.5 percent considered themselves “Yugoslavs.” In addition to the three largest ethnic groups, members of other nations and nationalities (according to the terminology of communist constitutional law) lived in the country and were entitled to equality under the Constitution. However, none of these groups was settled in a separate, territorially defined or closed area.

3 Mainly through air-strikes in summer 1995. The war left more than 110,000 people dead or registered as missing, led to the displacement of an estimated 1.8 million persons, and to extensive physical and economic destruction. The long siege of Sarajevo and the massacre of Muslim men in Srebrenica shook world public opinion.

4 Despite its generic character and its reference to a wide variety of international organizations and NGOs, “International Community” is generally used as an umbrella term in Southeastern Europe.

5 While the goal of Bosnian Serbs had been the independence of “their” self-proclaimed Republika Srpska (Serb Republic) in order at a later stage, to possibly join Serbia proper and while the Bosnian Croats had also hoped to create an autonomous territorial unit of their own in Herzegovina in order to prepare for joining Croatia in future, only the third major group, the Muslim-Bosniaks, shared and supported the International Community’s objective of preserving Bosnia-Herzegovina’s statehood and territorial integrity.

6 The Stabilisation and Association Agreement (SAA) was concluded between BiH and the EU in Luxemburg on 16 June 2008; it provides a clear expression of interest in Bosnia’s future membership.

7 On the differences between the post-communist transition in the CEE and the SEE, see Judy Batt, “Introduction: The Stabilisation/Integration Dilemma,” in Judy Batt, ed., The Western Balkans Moving On, Chaillot Paper no. 70 (Paris: EU Institute for Security Studies, October 2004), 7–20 [www.iss-eu.org].

8 While the sociological concept of a “multiethnic society” is related to the concept of a society characterized by the presence of different ethnic groups and their interaction, in legal terms, the concept of a “multiethnic state” is based on the legal recognition of an ethnically diverse population. However, it depends on the general orientation of the constitutional system whether as a consequence of this recognition, (ethnic) diversity is guaranteed and protected or even promoted: according to the classic liberal constitutional approach, only individual rights are recognized; in a “promotional” system, members of minority groups can also exercise specific rights, in particular regarding language use, religion, or political participation.

9 The Dayton Peace Agreement (DPA) was signed in December 1995 in Paris; for the “General Framework Agreement of Peace – GFAP” see http://www.ohr.int/dpa/default.asp?content_id=380.

10 Before BiH’s independence, in a referendum held on 1 January 1992, i.e., after and in response to the referendum on the independence of BiH as a whole, in which practically only Bosniaks and Croats took part.

11 The Washington Agreement was signed on 1 March 1994 (see text at http://www.usip.org/library/pa/bosnia/washagree_03011994_toc.html); cf. Noel Malcolm, Bosnia: A Short History (Basingstoke and Oxford: Macmillan 2002), 253ff.

12 Richard Holbrooke, To End a War (New York: Random House, 1999), 292ff.

13 The International Court of Justice (ICJ), which deals with controversies between states (while the International Criminal Tribunal for the former Yugoslavia, ICTY, holds specific individuals criminally responsible), was faced with Bosnia’s claim that Serbia was responsible for the Srebrenića massacre. Although the ICJ ruled that genocide had taken place, it decided that Serbia was not responsible under international law; ICJ, judgment of 26 February 2007, Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro). However, the Court also found that Serbia had violated its obligation under the Genocide Convention to prevent genocide in Srebrenića and that it had also violated its obligations under the Convention by having failed fully to co-operate with the ICTY. In late March 2010, Serbia’s Parliament passed a resolution condemning the massacre and apologizing for Serbia not doing more to prevent the tragedy.

14 This has given rise to controversies regarding some parts of the version published on the website of the High Representative of the IC (www.ohr.int) regarding their conformity with the original text adopted in Dayton and Paris. However, so far there has been no publication of an authorized translation of the Constitution in the Official Gazette of the State. Although linguistically very close to each other and even known as “Serbo-Croatian” in former Yugoslavia, the official languages of BiH are nowadays three, known as “B-C-S”: Bosniak, Croatian, and Serbian. Despite some smaller differences, people usually understand each other perfectly; however, reversing the famous saying by the linguist Weinrich ( “a language is a dialect with an army and a navy”), currently, a politically guided process of linguistic differentiation takes place. With the existing differences being highlighted and new ones being deliberately introduced, three distinct languages will be created to strengthen the distinct “national” character of the three constituent groups in Bosnia.

15 In fact, the abstract term “Entities” shall avoid any reference to a “State”-like character of these territorial units.

16 In fact, the term “federal” in Bosnia is reserved for the FBH, while the federal level is referred to as the “State” and its institutions are the “Common Institutions,” as distinct from those of the Entities. In the same way, “sub-national” is inappropriate for referring to the Entity level, since Bosnia is a “multi-national” State; i.e., it is composed of three “constituent peoples” and the Entities are not supposed to be ethnically homogenous. In addition, the name of the State, Bosnia and Herzegovina, is composite.

17 These relations and agreements are subject to the approval by the State Parliament (art. III.2.d) and are counterbalanced by the obligation of the Entities to provide the necessary support to the central government necessary for the respect and the implementation of international obligations (art. III.2.b).

18 In fact, such agreements were concluded between the FBH and Croatia in 1998 and between the RS and the then Federal Republic of Yugoslavia in 2001.

19 Articles III.2.b and VIII, BiH Constitution.

20 The seventy-four members of the House of Peoples are elected by the Cantonal assemblies; quotas guarantee the equal representation of Bosniaks and Croats (thirty members each, plus fourteen “Others”).

21 Florian Bieber, Governing Post-War Bosnia and Herzegovina, in Kinga Gal, ed., Minority Governance in Europe (Budapest: Local Government and Public Service Reform Initiative 2002), 328 ff.

22 The Brčko Arbitration Tribunal for the Dispute over the Inter-Entity Boundary in the Brčko Area, Final Award (5 March 1999), para. 1e 11, attributed to Brčko a status similar to the District of Columbia in the United States, but with an international supervisor.

23 The candidates for office have to declare their group affiliation, and they are elected in “their” territories: the Serb member is elected by voters in the RS, and the voters of the FBH elect the Bosniak and Croat member.

24 According to the generally common structural characteristics of a federal system as identified by Ronald L. Watts, Comparing Federal Systems, 2d ed. (Montreal: McGill– Queen’s University Press 2001), 7.

25 Since its federal system has been imposed by the International Community as an instrument of “crisis federalism.” Cf., for the concept of “forced-together federalism,” Nancy G. Bermeo, “The Import of Institutions,” Journal of Democracy, 13, no. 2 (April 2002): 96–110.

26 According to Arend Lijphart, Democracy in Plural Societies (New Haven: Yale University Press 1977); and Arend Lijphart, “The Power Sharing Approach,” in Joseph V. Montville, ed., Conflict and Peacemaking in Multiethnic Societies (New York: Lexington Books 1991), 492–4. See also Florian Bieber, Recent Trends in Complex Power-Sharing in Bosnia and Herzegovina, in Eurac/ECMI, eds., European Yearbook of Minority Issues, vol. 1, 2001–2 (The Hague: Kluwer Law International 2003), 269–82.

27 For a comparative analysis, see Florian Bieber, “Institutionalizing Ethnicity in Former Yugoslavia: Domestic vs. Internationally Driven Processes of Institutional (Re-) Design,” The Global Review of Ethnopolitics 2 (January 2003), 3–16.

28 A majority within the three groups of present members is required (art. IV.3e). This means that for a veto on legislation, an ethnic group of delegates constituting only 20 percent of the House of Peoples is sufficient.

29 Sienho Yee, “The New Constitution of Bosnia and Herzegovina,” European Journal of International Law 7 (1996): 179 ff.

30 In fact, the school system and the media are also divided along ethnic lines.

31 The term “institutional overkill” is used by Joseph Marko, Bosnia and Herzegovina: Multi-Ethnic or Multinational? in European Commission for Democracy through Law, ed., Societies in Conflict: Science and the Technique of Democracy, no. 29, (Strasbourg: Council of Europe Publishing 2000), 92–118.

32 International Monetary Fund, Bosnia and Herzegovina: 2008 Article IV Consultation-Staff Report, IMF Country Report 08/327 (Washington, DC, October 2008), 13. See also Jan Werner, Laurent Guihery, and Ognjen Djukić, Fiscal Federalism in Bosnia and Herzegovina: Ten Years after the Dayton Treatment and Still Not in a Steady Condition, ILPF (Institute for Local Public Finance), Working Paper 01–2006 (January 2006), at http://www.ilpf.de/en/download/wp-01–2006.pdf.

33 On the basis of the DPA and its annexes, these international bodies worked for a transitional period, after which their functions were transferred to local institutions: the OSCE has handed over the Electoral Commission to the State of BiH, and the IPTF has been replaced by the EU Police Mission, which, however, does not have any operational functions but only consultative and monitoring ones.

34 The international constitutional judges and members of the HRC have been nominated by the President of the European Court for Human Rights in Strasbourg. Also, the president of the National Bank, responsible for the stability of the currency, has to be a foreign national. The work of the HRC has been directly based on annex 6 DPA (see: http://www.hrc.ba/), the work of the CRPC on annex 7 DPA (http://www.law.kuleuven.be/ipr/eng/CRPC_Bosnia/CRPC/new/en/main.htm).

35 At State level, the Constitutional Court, the Ombudsperson, the Chamber of Human Rights (annex VI), and the CRPC (annex VII); in the Federation the Constitutional Court, the Supreme Court, the Human Rights Court, the Federation Ombudsmen, and the Federation Implementation Council; and in the Republika Srpska the Constitutional Court and the Supreme Court.

36 It is by no means clear from text of the Constitution, whether this authority is vested with the Human Rights Chamber or the Constitutional Court of Bosnia and Herzegovina. The Constitutional Court declared appeals against decisions of the Human Rights Chamber inadmissible in cases U 7/98 through U 11/98 in the Official Gazette of Bosnia and Herzegovina, no. 9, 1999.

37 In annex 10 of the DPA, establishing the Office of the High Representative (OHR), the function of monitor and mediator is expressly foreseen as the coordinating and final authority for the interpretation of the civilian aspects of the implementation of the DPA.

38 These processes have been carried out by the IC itself: between 2002 and 2004, the IPTF and a special High Judicial and Prosecutorial Council, composed of international members, screened members of the security forces, and judges as well as prosecutors for human rights violations during the War.

39 Since the Council Meeting in 1993, the well-known Copenhagen criteria have made up the political condition for membership in the EU. Economic reforms and transformation into a market economy, as well as building up sufficient administrative capacity, are further criteria to be respected and fulfilled by (potential) candidates for membership.

40 This is the main thesis of David Chandler, “Introduction,” in David Chandler, ed., Peace without Politics? Ten Years of International State-Building in Bosnia (London and New York: Routledge 2006), 13.

41 The legal basis for the mandate of the High Representative is annex 10 of the DPA – and therefore agreement by the Parties; However, it is also “entrusted by a UN Security Council resolution” (annex 10, art. I), which can be seen as an act of approval by the UN (S/RES/1031, 15.12.1995).

42 The Peace Implementation Council (PIC) is an international forum of 55 States supporting the peace process in Bosnia with different means. It monitors the activities of the High Representative and, through a steering board of a smaller group of countries, provides strategic guidelines for the IC’s action in Bosnia; see http://www.ohr.int/pic/default.asp?content_id=38563.

43 The Bonn Powers were conferred by the PIC at its meeting in Bonn in December 1997.

44 Until January 2010, altogether nearly nine hundred decisions had been adopted over thirteen years by the High Representative. See for an analysis Bart M. J. Szewczyk, “The EU in Bosnia and Herzegovina: Powers, Decisions and Legitimacy,” euiSS Occasional Paper, no. 83 (March 2010) [www.iss.europa.eu]. From 2000 to 2005, the international presence was at times highly interventionist: the total number of annual decisions under High Representative Lord Paddy Ashdown between 2003 and 2005 exceeded those of any of his predecessors and successors. See Matthew T. Parish, “The demise of the Dayton protectorate,” J Interv State Build 2007/1 (special supplement), 11–23, and for a list of all decisions adopted, see www.ohr.int/decisions/archive.asp. The removals from office even included presidents and prime ministers.

45 See in particular Gerald Knaus and Felix Martin, “Travails of the European Raj, Lessons from Bosnia and Herzegovina,” Journal of Democracy 14, no. 3 (July 2003), 60–74 (http://www.journalofdemocracy.org/KnausandMartin.pdf), and for the subsequent debate, provoked by the authors’ main thesis that “you can’t create a stable democracy by these authoritarian methods,” see http://www.esiweb.org/europeanraj/reactions.php and David Chandler, ed., Peace without Politics?

46 Constitutional Court Bosnia and Herzegovina, Judgment, Case No. U 5/98–III (1 July 2000), in Službeni glasnik (official gazette) no. 23/2000, 14 September 2000 (http://www.ustavnisud.ba/english/default.htm).

47 The Court decides on all controversies between the State and the Entities; as well as on issues referred to it by each member of the Presidency, the president of the Council of Ministers, the chair or deputy chair of each chamber of Parliament, or a quarter of all members of each chamber, at either the State or the Entity level (article VI, 3a). Decisions of the Court are to be final and binding, but the Constitution does not specify how decisions are to be taken or whether they are subject to an ethnic or other veto. The Court, however, when determining its rules of procedure by majority vote, decided that decisions are taken by a simple majority without any further requirement; see Constitutional Court, Rules of Procedure, article 35.

48 Constitutional Court Bosnia and Herzegovina, Judgment, Case no. U 5/98–III (at 63).

49 As established in article II.3 and 4 of the Bosnia and Herzegovina constitution.

50 Constitutional Court Bosnia and Herzegovina, Judgment, Case no. U 5/98–III, at 59 and 60. The Court ruled that “despite the territorial delimitation of Bosnia and Herzegovina by the establishment of the two Entities, this territorial delimitation cannot serve as a constitutional legitimation for ethnic domination, national homogenization or a right to uphold the effects of ethnic cleansing” (at 61).

51 For instance, the government of the RS was composed only of Serbs (twenty-one members out of twenty-one), and the same was true for police forces (93.7 percent) and judges (97.6 percent); analogous figures were applied in the FBH.

52 See Constitutional Court Bosnia and Herzegovina, Judgment, Case no. U 5/98–III, at 92 (RS) and at 137 (FBH).

53 Constitutional Court Bosnia and Herzegovina, Judgment, Case No. U 5/98–IV (fourth partial decision); the decision is based on the precedent of the “Framework Law on Privatisation of Enterprises and Banks in Bosnia and Herzegovina” (official gazette BiH, no. 14/98) imposed by the High Representative.

54 In the case decided, the Court confirmed an (implicit) power of the State to determine minimum standards regarding the regulation of the official use of languages, which was part of the exclusive competencies of the Entities, but had been used in a discriminatory way; Constitutional Court, case U 5/98–IV, sub 24 and 34.

55 Art. I.4. of the BiH Constitution guarantees the free movement of persons, goods, services, and capital. Framework legislation of the State might be necessary to guarantee the fulfillment of the Entities’ obligations and to remove obstacles to the common market; Const. Court, case U 5/98–IV, sub 31 and 34.

56 International Crisis Group (ICG), Implementing Equality: The “Constituent Peoples” Decision in Bosnia & Herzegovina, ICG Balkans Report no. 128 (2002) (www.crisisweb.org).

57 Referring to the other annexes of the DPA and to the international sources mentioned in the Constitution, in particular those related to human rights protection, which consequently, owing to their supremacy, can be considered as supreme constitutional principles.

58 Florian Bieber, Governing Post-War Bosnia, 332.

59 On 19 April 2002, High Representative Wolfgang Petritsch, in his last days in office, imposed all the amendments to the FBH Constitution with the first decision, while the second corrected shortcomings of the RS Constitution. The third decision amended the election law according to the previous constitutional amendments (in view of the October 2002 elections). See, for a critical analysis, Valery Perry, Constitutional Reform and the “Spirit” of Bosnia and Herzegovina, ECMI Brief 7, February 2002 (http://www.ecmi.de/doc/download/brief_7.pdf), and European Stability Initiative (ESI), Imposing Constitutional Reform? The Case for Ownership (2002) (www.esiweb.org).

60 See www.ohr.int for further information, as well as for the content of the Sarajevo-agreement (27/03/2002). For a detailed and critical analysis see ICG, Balkans Report no. 128, especially 12–14 (http://www.crisisweb.org).

61 For example, the judgment on place names that prohibited and annulled “ethnic prefixes “(Srpsko Sarajevo and others), which had been introduced during the war in order to indicate the ethnic character of a town (often after operations of ethnic cleansing), in contrast to older, historical place names; Constitutional Court Bosnia and Herzegovina, Judgment, Case no. U 44/01 (27/2/2004), in Službeni glasnik (official gazette), no. 23/2000, 14/9/2000. For a profound analysis of the Constitutional Court’s case law, see Christian Steiner and Nedim Ademović, Kompetenzstreitigkeiten im Gefüge von Dayton, in Wolfgang Graf Vitzthum, Ingo Winkelmann, eds., Bosnien-Herzegowina im Horizont Europas (Berlin: Duncker & Humblot 2003): 109–47; Joseph Marko, “Five Years of Constitutional Jurisprudence in Bosnia and Herzegovina: A First Balance,” European Diversity and Autonomy Papers, Bolzano/Bozen 7/2004 (www.eurac.edu/edap); and Christian Steiner and Nedim Ademović, eds., Constitution of Bosnia and Herzegovina: Commentary, Konrad Adenauer Stiftung e. V., Rule of Law Program South East Europe (Sarajevo 2010) (http://www.kas.de/wf/doc/kas_19629–1522–1–30.pdf?100531103302).

62 See the comment by the European Commission for Democracy through Law (Venice Commission), Opinion no. 483/2008, Strasbourg, 22 October 2008, Amicus Curiae Brief in the cases of Sejdić and Finci v. Bosnia and Herzegovina (Applications no. 27996/06 and 34836/06), which criticizes the continuous discrimination against “Others” owing to their exclusion from the State Presidency and the House of Peoples.

63 ECtHR, Sejdić and Finci v. Bosnia and Herzegovina (27996/06 and 34836/06). The Court has found that the applicants’ ineligibility to stand for election to the House of Peoples violates Article 14 of the ECHR (the ban of discrimination in the area of convention rights), read in conjunction with Article 3 of Protocol No. 1 (free elections), and that their ineligibility to stand for election to the Presidency violates Article 1 of Protocol No. 12 (general ban of discrimination).

64 See Knaus and Martin, “Travails of the European Raj,” as well as Chandler, Peace without Politics. Besides the accountability issue (including the lack of legal remedies against overriding measures of international institutions), the disproportion between the intensity and the duration of the extraordinary powers has been criticized, as has their often paternalistic use. Particularly instructive is the vetting process regarding police officers carried out by the IPTF without any possibility of appeal by the de-certified police officers who had lost their jobs according to a decision of the international institutions. For details see European Stability Initiative (ESI), On Mount Olympus: How the UN violated Human Rights in Bosnia and Herzegovina, and Why Nothing Has Been Done to Correct It (February 2007) (www.esiweb.org).

65 Sumantra Bose, Bosnia after Dayton: Nationalist Partition and International Intervention (Oxford: Oxford University Press 2002).

66 For an overview of the Stabilization and Association Process in the Western Balkans, see Christian Pippan, “The Rocky Road to Europe: The EU’s Stabilisation and Association Process for the Western Balkans and the Principle of Conditionality,” European Foreign Affairs Review, 9, no. 2 (2004): 219–45, and Sofia Sebastian, The Stabilisation and Association Process: Are EU Inducements Failing in the Western Balkans? FRIDE – Fundacion para las Relaciones Internacionales y el Dialogo Exterior, Working Paper 53 (February 2008).

67 Any country seeking membership in the European Union (EU) must conform to the conditions set out by Article 49 and the principles laid down in Article 6 (1) of the Treaty on European Union. Criteria for membership in the EU were defined in 1993 at the Copenhagen European Council (they are often referred to as the Copenhagen criteria). They require that the candidate country must have (1) stable institutions guaranteeing democracy, the rule of law, human rights, and respect for and protection of minorities; (2) a functioning market economy, as well as the capacity to cope with competitive pressure and market forces within the EU; (3) the ability to satisfy the obligations of membership, including adherence to the aims of political, economic, and monetary union.

68 Opinion on the Constitutional Situation in Bosnia and Herzegovina and the Powers of the High Representative, 11–12 March 2005 (http://www.venice.coe.int/docs/2005/CDL-AD (2005) 004–e.pdf). The European Commission for Democracy of Law ( “Venice Commission”) is the Council of Europe’s advisory body on constitutional matters and is currently composed of fifty-four “independent experts who have achieved eminence through their experience in democratic institutions or by their contribution to the enhancement of law and political science” (article 2 of the revised statute); see (http://www.venice.coe.int).

69 See www.daytonproject.org/publications/printer.php?id=140 and the analysis and comments by Joseph Marko, Constitutional Reforms in Bosnia and Herzegovina 2005– 6, in European Yearbook on Minority Issues, vol. 5 (2005/6) (Leiden/Boston: Martinus Nijhoff 2007), 207–18; Matthias Hartwig, Gutachten zu dem Entwurf der Verfassungsänderung der Verfassung von Bosnien-Herzegowina (Heidelberg: May 2007) (www.kas.de/db_files/dokumente/7_dokument_dok_pdf_10998_1.pdf).

70 Responding to EU and CoE requirements, these shared powers would have included taxation, the electoral system, the judiciary, agriculture, science and technology, the environment, and local self-governance.

71 On 24 April 2006, owing to the opposition of the second largest Bosniak party (SBiH) and a fraction of the Croat party (HDZ), which had split from that party in April 2006 in protest against the April Package and had formed a new party called HDZ 1990.

72 In May 2007, the United States proposed a substantially revised version of the April Package. In June 2007, High Representative Schwarz-Schilling tried to establish an open dialogue on reforms without predetermining their content, but without success. His term was already close to an end, and his efforts were not supported by all States.

73 International Crisis Group (ICG), Bosnia’s Stalled Police Reform: No Progress, No EU, Europe Report no. 164 (Sarajevo/Bruxelles: 6 September 2005) (www.crisisweb.org).

74 The initialling took place in a ceremony in Sarajevo, as a first step towards responding positively to the political agreement on police reform. The actual signing of the SAA, which was decisive in legal terms, actually occurred months later, in June 2008, after police reform had been definitely adopted by the Parliament of Bosnia-Herzegovina in April 2008.

75 The unilateral declaration of independence of Kosovo in 2008 and the renewal of Russia’s activism in the Balkans have encouraged the Serbs to press their case in Bosnia, including with threats to call for a local referendum on the status of the Dayton Peace Agreement and the RS secession from Bosnia; see the RS Government’s Position of 14 December 2009 and the RS National Assembly Conclusions of 28 December 2009.

76 This is the position of Haris Silajdzić and his party (SBiH). The decision on the genocide in Srebrenića by the ICJ in February 2007 (ICJ, judgment of 26 February 2007, Application of the Convention on the Prevention and Punishment of the Crime of Genocide [Bosnia and Herzegovina v. Serbia and Montenegro]) has further widened the divide and sparked nationalist rhethoric between Bosnian Serbs and Bosniaks.

77 Often a special status for Sarajevo is proposed: as a fourth unit or a federal district.

78 Already in 2004, in order to overcome the deadlock resulting from this antagonism by increasing the number of institutional actors representing territorial interests, in a provocative proposal the abolition of the Federation and a territorial design of Bosnia based on twelve constituent units (ten cantons, the RS, and Brčko-District) had been proposed by the European Stability Initiative (ESI), Making Federalism Work: A Radical Proposal for Practical Reform (January 2004) (www.esiweb.org).

79 For instance, between the West and Russia, but also between the US and the EU. Constantine Arvanitopoulos and Nikolaos Tzifakis, “Implementing Reforms in Bosnia and Herzegovina: The Challenge of the Constitutional Process,” European View (2008) 7: 15–22 (http://www.springerlink.com/content/1mg60j00gr23rt21/fulltext.pdf).

80 George Schoepflin, “The Rise and Fall of Yugoslavia,” in John McGarry and Brendan O’Leary, The Politics of Ethnic Conflict Regulation: Case Studies of Protracted Ethnic Conflicts, (London and New York: Routledge 1993; reprint 1995), 192 ff. Schoepflin continues, “The principal national communities never sought genuinely to understand the other’s perspectives, interests or aspirations. The consequences were predictable.”

81 These conclusions are rightly identified as lessons to be learned from the failure of the April Package. See Edward P. Joseph and R. Bruce Hitchner, “Making Bosnia Work: Why EU Accession Is Not Enough,” usiPeace Briefing (June 2008), 7.

82 According to recent declarations, the EU is willing to adapt its strategy and instruments for preparing for membership to the specific situation of a multinational State, as well as to actively promote and facilitate the process of constitutional reform. See the communication “2009 the year of the Western Balkans” by the EC Commission, Communication from the Commission to the European Parliament and the Council: Enlargement Strategy and Main Challenges 2008–2009, Brussels, 05.11.2008, COM (2008) 674 final, 14; summary note on the joint report by Javier Solana, EU high representative, for the CFSP; and Olli Rehn, EU commissioner for enlargement, “EU’s Policy in Bosnia and Herzegovina: The Way Ahead, ” Brussels, 10 November 2008, S 367/08. For interesting reflections on the lessons (to be) learned, see Matthew Parrish, A Free City in the Balkans: Reconstructing a Divided Society in Bosnia (London and New York: I. B. Tauris 2010), especially chapters 1 and 9.

83 The Prud Agreement (January 2009) is based on a first and broader Joint Statement of the same political leaders (Odžak Declaration, 8 November 2008), which also dealt with the controversial issues of State property, the constitutional status of the Brčko-District, the creation of a Fiscal Council and reforms of the Council of Ministers.

84 The three political parties alone fall short of having a sufficient (two-thirds) majority in the House of Representatives.

85 International Crisis Group, Federation of Bosnia and Herzegovina: A Parallel Crisis, Europe Report no. 209 (28 September 2010) (www.crisisgroup.org/). So far, any reform of the FBH has been impossible because of the contrasting concepts of Croats (insisting on a fourth Entity) and Bosniaks (fearing any weakening of their positions).