The Constitution of Bosnia-Herzegovina
Morrison, Fred L., Constitutional Commentary
The new constitution of the Republic of Bosnia and Herzegovina is clearly a transitional document. It is, of course, the product of civil war, of "ethnic cleansing," and of (well justified) mutual mistrust. It was created as part of the peace package negotiated at Dayton in November 1995 and accepted by the two constituent "Entities" (the Federation of Bosnia and Herzegovina, and the Republic of Srpska) and by the central government as the new constitution of the internationally recognized Republic. It is the second new constitution to be negotiated with international assistance and encouragement in the course of the recent hostilities; the first, as amended, now serves as the constitution of the Federation which forms one half of the Republic.(1)
This new Bosnian constitution makes the American Articles of Confederation of two centuries ago look like a centralized, unitary form of government. It distributes almost all governmental authority to the two "Entities," the Federation of Bosnia and Herzegovina (in the territory controlled by the former Croat and Muslim government) and the Republic of Srpska (in the territory formerly controlled by the Bosnian Serbs), and then effectively disables the central government from exercising the few powers given to it. It thus combines a "minimalist" approach to national government with a "maximalist" approach to checks and balances. The central government of the new Bosnia has very few competences and these can be exercised only with acquiescence of all parties. The constitution is only one of 12 annexes to the General Framework Agreement on peace in the area. Some of the other annexes also have constitutional dimensions and will be discussed here. The protection of human rights, the restoration of the infrastructure, and the settlement of disputes between the Entities are all subjects of separate agreements outside of the constitution itself.
The level of distrust evidenced by the instrument is illustrated by the heavy reliance on "outsiders," i.e., on persons from outside of the former Yugoslavia, to provide many of the leadership functions of the new government by providing the neutral tie-breaking vote in many important governmental institutions.
A brief word of history is necessary, if only to identify the players. The former Yugoslavia was nominally a federation of six republics: Slovenia, Croatia, Serbia, Montenegro, Macedonia, and Bosnia-herzegovina. In the days of Tito, the federation operated with an amazing uniformity, at first because of the personal influence of Tito, and later because of the unifying role of the Communist Party. With the collapse of the communist bloc, it flew apart. Slovenia quickly became an independent republic, and Croatia followed soon thereafter. Macedonia also became independent, but engaged in endless squabbles with Greece over its name; it is now known as the Former Yugoslav Republic of Macedonia. Serbia and Montenegro continued a quasi-federal existence, internationally recognized under the name Yugoslavia (Serbia and Montenegro).(2) Bosnia-herzegovina, the most multiethnic of the nations, collapsed into its civil war.
There were really three parties to that conflict: the Bosnian Serbs, who were initially supported by Serbia, i.e., by Yugoslavia (Serbia and Montenegro); the Bosnian Croats, who were initially supported by Croatia, but soon came to ally themselves with the Moslems, and the Bosnian Moslems, who had the leadership of the Bosnia-herzegovina government. (There was also another small group, called simply "Others," who were caught in the middle of all of this, and who considered themselves only citizens of the region, without ethnic allegiance.(3) In this group were some individuals of Italian extraction, some Jews, and some mixed families.)
In 1994, under the aegis of the Vance-Owen peace talks, a constitution was worked out for the portions of Bosnia-herzegovina then controlled by the Bosnian government. …