BiH Constitution as an element of consolidation of peace

The Constitution of Bosnia and Herzegovina may be understood only in the context of a group of international legal agreements that were agreed upon in Dayton/ Paris, in particular when viewed together with the Elections Agreement (Annex 3), the Human Rights Agreement (Annex 6), the Agreement on Refugees and Displaced Persons (Annex 7), and the Agreement on the Civil Implementation of the Peace Agreement (Annex 10). Besides the BiH Constitution, the mentioned Annexes also contain the substantive and procedural laws, which may usually be found in a state constitution (Annexes 3, 6 and 7), or regulations that affect the BiH Constitution in practice (Annex 10). Since regulations relating to elections, human rights and the return of refugees and displaced persons were not separated from the text of the Constitution in earlier drafts of the Constitution, this new regulation of the case law (both of the Constitutional Court and the Human Rights Chamber³) has reopened the issues related to the relation among the mentioned annexes.⁴

The Civil Annexes to the GFAP contain a great number of objectives and principles set for the reconstruction of Bosnia and Herzegovina. Nevertheless, first and foremost, one should mention that the military task was to end the armed conflict by establishing military security. At the same time, this task was an important condition for successful implementation of the civil components of the peace process, which is, then again, the guarantee for lasting peace in the country. In the opinion of the signatories from Dayton, fair democratic elections should have been the starting position for the new beginning, whereas the technical conduct of such elections was a lesser challenge than the creation of the necessary political and social conditions for holding the elections. Despite the democratic legitimacy of institutions at all governmental levels, which kept growing with each new election, there was and there still is a significant problem in the reconstruction process. This concerned the inability of institutions to responsibly control the fate of the country on their own, so that the international community had to come to their assistance by taking concentrated and wide-ranging substitute measures. Indeed, such a large-scale engagement of the International Community was also necessary due to the usual “childhood diseases” of countries in transition, which were additionally intensified by the huge economic damage and social breakdown caused by the armed conflict. This was the case not only because of the very consequences, which were rather evident, but also because of the fact that the armed conflict obscured the consciousness of the general population when it came to the fact that it was necessary to reform the economic system, which was unable to sustain itself. While other states were able to handle the challenges of transition on their own, the inabilities of the institutions of Bosnia and Herzegovina were programmed back in the Dayton Constitution. The successful compromise reached in order to end the armed conflict had forced the three antagonistic ethnic groups (despite the Washington Agreement, the same goes also for the two sides in the Federation) to continue living together in a sovereign state, and to cooperate on reconstruction. The dependency of the reconstruction process on the cooperation of the three opposing, formerly warring, sides inevitably led to the intervention by a neutral fourth side, which in this case was the International Community personified in the Office of the High Representative.

The process of creating structures of a legal state and democracy-oriented institutions at the State level, as provided for in the BiH Constitution, considering their development under a protectorate, face a double challenge today, 14 years after the establishment of peace. After many years of guardianship, at times pleasant, the institutions of Bosnia and Herzegovina must learn to make difficult and unpopular decisions by themselves, which are necessary for Bosnia and Herzegovina to secure its future survival, and to stand by such decisions before its citizens. In addition, these institutions must learn to make such difficult decisions by compromise, as stoppages in legislative and executive authority at the state-institution level are unacceptable, considering all the problems the country has.