Article V.5(a)

The three sentences of Article V.5(a) contain four different legal requirements or prohibitions: 1) Each member of the Presidency shall have civilian command authority over the armed forces; 2) Neither Entity shall threaten or use force against the other Entity; 3) The armed forces of one Entity shall not be permitted to enter or remain on the territory of the other Entity without the consent of the government of the latter and the Presidency of Bosnia and Herzegovina; and 4) All armed forces in Bosnia and Herzegovina shall operate consistently with the sovereignty and territorial integrity of Bosnia and Herzegovina.

The differing views of the Entities regarding State-level control of the armed forces resulted in different interpretations of the first sentence of Article V.5(a) and inconsistent approaches to its implementation. The Federation Constitution transferred all civilian command authority over Federation armed forces to the two members of the Presidency of Bosnia and Herzegovina elected from the territory of the Federation.²⁸⁵³ Command over the Bosniak component of the Federation army was explicitly granted to the Bosniak member of the Presidency of Bosnia and Herzegovina and the Croat member of the Presidency of Bosnia and Herzegovina commanded the Croat component.²⁸⁵⁴

In the Federation, the exercise of civilian command authority by the two members of the Presidency of Bosnia and Herzegovina also created an unusual situation whereby part of a State institution was exercising authority over an army that was otherwise wholly governed by Entity law²⁸⁵⁵ and which was, on a day-to-day basis, managed by a Ministry of Defence whose minister was a part of the Entity government.

In contrast, the Republika Srpska took the position that the RS army belonged to the Entity,²⁸⁵⁶ that all command authority resided in Entity institutions, and that the provisions of Article V.5(a) would only be operative if the territorial integrity of Bosnia and Herzegovina were threatened by external forces.

The Constitutional Court of Bosnia and Herzegovina attempted to clarify the issue in its Partial Decision No. IV of the matter U 5/98.²⁸⁵⁷ Among other issues, that case involved a challenge to Entity competency for defence-related matters. The Court decision recognised that the Constitution “does not provide for the existence of the armed forces of Bosnia and Herzegovina as a unified organisational structure of Bosnia and Herzegovina, i.e., it does not define the formation, the organisation or the command over unified armed forces to be a responsibility of Bosnia and Herzegovina” and that the “Constitution of Bosnia and Herzegovina explicitly provides that in Bosnia and Herzegovina there shall be the armed forces of the Entities.”²⁸⁵⁸

In attempting to make sense of the command role of the Presidency of Bosnia and Herzegovina and its members, the Court held that

“the decision on the use of the armed forces of the Entities [in the case of an external threat would] be taken by the member of the Presidency from the respective Entity, apparently with the consent of the Entity authorities, i.e., in coordination with them, which is the essence of this provision ²⁸⁵⁹ […] However, the fact that members of the Presidency exercise civilian command authority over the armed forces of the respective Entity when there is an external threat does not change the fact that they remain armed forces of the Entities with supreme command over them ensured within the Entities, pursuant to the Entity Constitutions.”²⁸⁶⁰

Given the fact that there are two members of the Presidency elected from the territory of the Federation, the Court decision implicitly recognised the existence of two separate chains of command over the separate Bosniak and Croat components within the Federation Army. The decision also failed to acknowledge that two separate, Entity armies (under three different chains of command) that are separately trained, equipped, and commanded during peacetime would be incapable of effective coordination in defence of the territorial integrity or political independence of Bosnia and Herzegovina, even if there were a political will to do so.

The Court’s decision in 2000 seems clearly to have been based on the political realities within Bosnia and Herzegovina just as much as those same realities influenced the original drafting of the provisions. Separately trained, equipped, and commanded Entity armies simply cannot be reconciled with the State’s constitutional authority to protect its territorial integrity and political independence. Yet, a judicial recognition of this inconsistency would have required a fundamental shift in political power from the Entities to the State, a shift the Court obviously felt it could not mandate.

In 2003, the International Community, in response to a scandal involving illegal arms shipments by the RS army, initiated a defence reform process. A commission was established by decision of the High Representative²⁸⁶¹ with a mandate to create State-level, civilian command and control over all armed forces in Bosnia and Herzegovina. That process led to the adoption of a State- level law on defence²⁸⁶² and the creation of a new, State-level ministry of defence²⁸⁶³ at the end of 2003. In 2005, both Entities agreed to transfer all defence competencies to the State²⁸⁶⁴ and a new, State-level law on army service²⁸⁶⁵ was adopted, merging the Entity armies into the new Armed Forces of Bosnia and Herzegovina.

The effect of the transfer of defence competencies by the Entities and the elimination of Entity armies in 2005 was to make most of Article V.5(a) legally irrelevant.²⁸⁶⁶ Only the first sentence – “Each member of the Presidency shall, by virtue of the office, have civilian command authority over armed forces” – continues to have legal effect. The meaning of “civilian command authority” is now clearly defined in State law without being burdened by references to Entity armed forces.